Colorado Probate Litigation: When Things Go Wrong

Losing a loved one is hard enough without having to manage disagreements over the outcome of their estate. These disputes—known as probate litigation—necessitate both a compassionate and strategic approach to achieve a satisfactory resolution. 

While proactive and effective estate planning can mitigate these risks, sometimes probate litigation is the only means to resolve complex disputes that arise. In these instances, a Castle Rock, Denver, or Colorado Springs probate lawyer with Robinson & Henry can help you reach a satisfactory resolution by employing a sensitive and strategic approach toward advocating for your best interests. 

Probate litigation is a legal contest arising from a dispute over an individual’s posthumous estate distribution. These matters are handled by probate attorneys who may represent petitioners and respondents in the same courts that oversee estate distribution and the appointment of personal representatives.  Probate litigation can also involve disputes over a trust as well as a probate estate. 

While most estate distribution matters are routine, open-and-shut cases, a conflict that becomes a legal contest requires probate litigation to resolve.

Probate litigation can arise from several types of conflicts:

• Disputes over a will or a trust instrument

• Situations where a person becomes incapacitated, requiring a guardian and/or conservator

• Disputes regarding who should be a guardian or conservator, or suspected abuse by those individuals

• Suspected misconduct by a fiduciary or power of attorney

In recent years, Colorado has experienced a surge in complex formal probate filings. Between FY 2023 and FY 2024 alone, El Paso, Adams, and Douglas counties saw increases in the number of formal probate filings, indicating that disputes requiring formal legal intervention are becoming more common.

There’s no strict formula for determining what situations will result in filing a lawsuit, but in my experience, the presence of complex family dynamics can trigger probate litigation in Colorado. 

• Sibling rivalries - Environments with intense disputes amongst siblings that can influence estate proceedings

• Blended families - Remarriages without a prenuptial agreement and/or a revised estate plan often raise the risk of litigation

• Omitted heirs - Estate plans that omit a child or create unequal distributions across heirs can create grounds for contest

In many cases, formal probate is the most suitable forum for addressing the sensitive and complex nature of these family disputes. 

Contesting a will is the action that triggers formal probate litigation. Common grounds to contest a will or trust in Colorado include:

• Undue influence - If a family member believes the deceased was pressured or coerced into including or excluding individuals in his/her will

• Failure of formality - If the testator (the person who created the will) failed to follow Colorado’s formality requirements 

• Mental incapacity - If a family member believes the decedent was not of sound mind when the will was created and signed

• Fraud - Someone lied to the decedent to get them to change a will or trust, or someone fraudulently executed a will or trust for someone under a power of attorney

Only certain people, called an “interested party”, can legally challenge a will or trust in Colorado. These individuals are often those who would be legally considered heirs if there were no will, as well as those who were named in previous wills but not in later versions. 

An interested party typically has six months from receiving notice of probate to contest a will in Colorado, as outlined in C.R.S. 15-12-412(1)(c)(I). The amount of time to contest a revocable trust is generally three years from the date of death of the Settlor; however, it might be shortened if certain notices are given, per C.R.S. 15-5-604(1).  Missing this deadline can bar you from bringing forward a formal legal challenge to a will’s validity. However, there can be mitigating circumstances to change this timeframe based on the type of proceedings brought, so it's essential to consult a lawyer about your specific circumstances.

Evidence such as medical records, emails, or witness statements can be crucial in proving undue influence or lack of capacity. In some cases, mediation or negotiation can resolve disputes before they go to court. A probate attorney can help you determine whether you have grounds to contest a will and file a claim on your behalf. 

If an adult becomes incapacitated or a child loses a sole custody parent, a Colorado probate court may appoint someone to serve as their guardian, conservator, or both, depending on the incapacitated individual’s needs. Litigation concerning conservatorship or guardianship assignments and actions is often the result of complex disputes. These may involve disagreements among family members over the appointment of a suitable party, or allegations of fraudulent activity or abuse by the acting caretaker.

Following the recent national focus on conservatorship reform, Colorado lawmakers have made efforts to introduce more oversight into the process. While the state legislature continues to address current reform challenges, our attorneys are working within the existing framework to meet the clients’ immediate needs. 

A probate attorney can also help you navigate contested appointments, petitions to remove a guardian or conservator strategically, and determine:

• Whether an incapacitated person requires a guardian or conservator;

• Who is best suited to serve in those capacities; and

• How to successfully secure those appointments through the probate court.

In Colorado, a personal representative or trustee is legally responsible for fulfilling fiduciary duties to both beneficiaries and creditors while acting in the best interest of the beneficiaries. I’ve seen firsthand how challenging it can be to maintain this balance.

Under the Colorado Uniform Trust Code, fiduciaries have strict obligations to administer the trust in good faith, and with loyalty, care, and transparency. Anything less and the fiduciary can be found in breach of their obligation to the estate. Acts that can constitute fiduciary misconduct include: 

• failing to account for assets

• improper investments

• using estate funds for personal benefit

If you suspect a fiduciary of mismanaging a loved one’s trust or estate or violating their fiduciary responsibility, you owe it to your loved one to seek legal guidance. A consultation with a fiduciary misconduct lawyer in Denver, Colorado Springs, or one of Robinson & Henry’s other conveniently located offices can help dispel common probate myths you’ve picked up over time, ensuring your decision is made based on verifiable fact. We’ll help you make an informed decision when things go wrong with an estate, prompting probate litigation in order to reach a satisfying resolution. 

Probate litigation matters are particularly sensitive, often guided by grief and distress. A legal advocate like myself or one of my colleagues can help you achieve your desired outcome, allowing you to move forward with your life. I understand that with so much at stake, it can be difficult to let go, which is why it is so crucial to find an experienced probate attorney in Denver, Colorado Springs, or the surrounding areas you can trust. 

Our probate litigation attorneys regularly handle disputes in the City and County of Denver and District Courts in El Paso County, Douglas County, and other jurisdictions. I’ve personally represented countless clients with contested wills, fiduciary conduct, and guardianship disputes. 

I’ll share one such matter with you now. 

A few years ago, I represented a client who had resided in their family home for more than two decades, serving as the primary caregiver for an aging parent. Upon the parents’ passing, the administration of the trust became contentious. Although the decedent had explicitly wished for the home to remain in the family for her grandchildren, a sibling co-trustee filed a motion to force the immediate sale of the property to liquidate their share of the estate. 

The litigation quickly became hostile. The sibling leveled serious accusations against my client, including self-dealing, property negligence, breach of fiduciary duty, and even elder abuse. They demanded the court remove my client as co-trustee and sought nearly $150,000 in back-dated “fair market” rent for the period my client lived in the home. 

We aggressively defended the client’s interests by utilizing medical letters and prior written agreements to demonstrate the mother’s intent for the client to reside there rent-free. We also filed a counterclaim, demonstrating that while my client covered all maintenance, home insurance, and property taxes, the accusing sibling had contributed nothing to the property’s upkeep, effectively breaching their own fiduciary duties. 

Our strategy shifted the leverage. Rather than succumbing to a forced sale, we negotiated a favorable settlement, which allowed my client to buy out the sibling’s interest in the property and dissolve the parent’s trust. We then assisted my client in creating a new beneficiary deed, ensuring the home would remain in the family for the benefit of future generations. 

In conclusion, it is easy to see how probate litigation matters can push families further apart than closer together in moments when grief feels insurmountable. You can trust Robinson & Henry’s experienced Colorado probate litigation attorney to act in your best interest while handling your case with sensitivity and compassion. Call 303-688-0944 or schedule your consultation online today.

How long do probate disputes take in Colorado?

There’s no single set length for probate. How long it takes to resolve probate disputes depends on the estate’s complexity and whether family members are involved. However, state law establishes specific deadlines for when involved parties must initiate, contest, and conclude a case. How quickly family members hire an attorney and prepare the necessary paperwork can also impact the duration of probate.

Who pays attorney fees in a Colorado probate litigation case?

Generally, each party involved in probate litigation pays for its own attorney. However, the individual officially appointed to manage the estate—called a personal representative or executor—is entitled to reasonable compensation from the estate’s funds as long as they’ve acted in good faith. Creditors who ask the court to appoint a public administrator to sue or defend the estate may have to pay that administrator’s fees upfront. 

What are common signs of undue influence in an elderly person’s will?

Common signs of undue influence include a sudden change in a will that benefits a caregiver or fiduciary at the expense of a close family member, particularly if that beneficiary was actively involved in drafting the document. Courts also look for evidence that an elderly person was susceptible due to age, illness, or isolation, and that the beneficiary had the opportunity and intent to exploit that vulnerability. 

Can you contest a will without a lawyer in Colorado?

Although it’s legally permissible to contest a will without legal representation, we don’t recommend it. Appearing pro se doesn’t garner any leniency from the court. Instead, it leaves you on the hook for meeting all of the legal requirements a probate attorney would normally handle, which could ultimately cost you more time and money than you initially planned.