Everything you need to know about “going through probate” – from who oversees the court to hiring a Colorado probate attorney provided by the attorneys at Robinson & Henry.
Losing a loved one can be a difficult time. Even when the loss is expected, the grief and shock that your family member or close friend is gone can be difficult to bear. The task of finalizing your loved one’s estate can be daunting. You may find yourself wondering asking, “Where do I begin?” The following information will help guide you through the probate process and, hopefully, will relieve some of your stress during your time of loss.
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A Look Inside the Denver Probate Court
The Denver Probate Court, which includes the City and County of Denver, is the only Colorado city that has a special probate court. Outside of Denver County, estates and wills are handled within the county’s district court. In Denver, to open a probate case or close an estate, the probate court is where it happens. In certain instances, you can even re-open an estate. That, too, takes place in probate court.
Denver Probate Court Office:
1437 Bannock St. Room 230
Denver, CO 80202
Phone: (720) 865-9310
Hours: Mon. – Fri. 8 a.m. – 4 p.m.
If you live outside of Denver County, you can find where to handle your probate matters by searching for your county’s district court. Courts by District provides a list of the state’s district courts. Look for your specific county in the list or perform a quick search to be directly linked to your judicial district.
Who Presides Over the Denver Probate Court
The Denver Probate Court is overseen by a presiding judge and a magistrate. The governor appoints the presiding judge to a two-year appointment. After the two years end, voters must approve the judge for an additional six-year term. In Denver, Judge Elizabeth D. Leith presides over probate court.
Presiding Judge – Elizabeth D. Leith
The honorable Elizabeth Leith was appointed by Gov. John Hickenlooper, in June 2011, to serve as the presiding judge for the Denver Probate Court. Voters retained Judge Leith in 2014, and her current term expires in 2021. Judge Leith earned her Juris Doctor from the University of Denver, Sturm College of Law, in 1988. She received her undergraduate degree from Metropolitan State College, in 1982. Prior to her appointment to the probate court, Judge Lieth was a Magistrate in the Second Judicial District. She also served as an assistant city attorney and a deputy district attorney. Judge Lieth currently sits on the Colorado Supreme Court Probate Rules Committee.
The Probate Process
What is probate? By definition, it is the settlement of an estate after death. The process itself has a number of steps, such as validating the will, taking inventory of assets, and paying final debts. Going through the probate process is easier than it used to be. Even so, it takes about a year to complete it in Colorado.
Here’s what the typical process looks like:
Lodging the Will
The first formality is to enter the will into probate court and open the estate. This is done by the individual who is named in the will as the estate’s personal representative. If there is no will, a court will appoint someone to handle the estate’s final business.
Formal Personal Representative Appointment
The court will issue the personal representative a letter of appointment. This important document will be used by the personal representative to verify they have the power to act on the estate’s behalf.
This portion of the probate process can be very involved. The personal representative will take inventory of all the assets, file and pay final taxes, and settle last debts. Once this is complete, the remaining assets should be ready to distribute to heirs.
Closing the Estate
Just as the estate is opened in probate court, the estate must also be closed. The estate’s personal representative has the option to choose an informal or formal closing. What’s the difference? An informal closing leaves a window of time where the administration of the estate can be challenged. In a formal closing, the court releases the personal representative from liability by issuing a court order that the estate was correctly administered.
Choosing the Best Probate Lawyer for You
Now that you better understand the probate process, let’s talk about choosing the right probate attorney for you.
You may wonder, “Do I even need a lawyer?” Maybe. Maybe not. Think about your loved one’s estate. Does the estate have a small amount of cash and no real estate property? Or, does your loved one has a large estate with multiple properties and retirement accounts? Are family members fighting about the will? Do you suspect your inheritance is in jeopardy because the trustee is stealing money from the estate?
If you’re dealing with a simple estate, a transactional probate attorney may be all you need to assist with filing. Some simple estates can go through probate without needing a lawyer.
But, if your case involves a more complex matter, like a will dispute, real estate, or other assets, you may need to hire an experienced probate litigator.
Be prepared. You will want to take important documents that will help explain your estate and circumstances. These documents could include:
- A will
- A living trust
- Beneficiaries’ names and contact information
- Property deeds
- The deceased’s financial statements (e.g. bank statements, retirement accounts, etc.)
- Probate court documents
- Outstanding debt (e.g. mortgages, credit cards, other loans)
- Records of trust transactions (for possible trust mismanagement case)
Be the interviewer. Remember, you are hiring them. This is your chance to ask questions and get a good feel for the lawyer.
Look for the three C’s: Competence, Communication, Compatibility
Regardless of your case’s complexity, you will want a probate attorney who is competent and a good communicator. When you meet with them, pay attention to how well they listen to you and how well they explain things. Are their answers full of legalese, or does it all make sense? Are they upfront with you about your case?
Personality and demeanor may also be important to you. If you’re struggling with emotional pain as you go through the probate process, you may find a lawyer with a gentler demeanor is right for you. If you’re trying to remove a combative trustee from a trust, an assertive lawyer may best suit your needs.
Ask questions. Don’t be shy to ask questions or speak up if you need something clarified. Here are some good questions to ask a prospective probate attorney:
- How long have you practiced probate law?
- What other areas do you practice?
- What’s your payment structure?
- Do you charge an hourly rate or a flat fee?
- Do you offer a payment plan?
- How involved will a paralegal be in my case? Will this help reduce my fee?
Cost vs. Experience
Keep in mind, an experienced lawyer, who may have a higher hourly rate, could cost less in the long run because they can be more efficient.
- My estate may face state and federal estate taxes. Do you have experience preparing estate tax returns?
- How long do you think it will take to resolve my case?
- Given my case, was is the cost estimate?
Get to Know Some Colorado Probate Attorneys
Colorado Bar, 1992
United States District Court for the District of Colorado, 1992
Practice Area: Probate, Civil Litigation
Office Location: Denver
Stephen received his Juris Doctor from the University of Denver Sturm College of Law in 1992. For his undergraduate degree in psychology, he attended the University of Notre Dame. Steve has more than 25 years of trial experience and has successfully litigated hundreds of cases in Colorado’s state, federal, and administrative courts.
“When people come to me with a problem our first resort is not to turn to litigation. We take an objective, pragmatic approach to the problem and see if resolution is possible,” Stephen says.
Stephen’s probate knowledge is vast. His experience includes litigation relating to disputes among heirs to an estate and the prosecution and defense of claims by estate creditors.
Here’s what one client had to say about Stephen’s legal services. “We cannot thank Mr. Whitmore enough for his opinions, recommendations, and legal services. His services, openness with recommendations and friendly involvement made him more like a friend than an advocate.”
You can schedule an assessment with Stephen here.
Why You May Consider Hiring a Colorado Probate Attorney
Consider This Before Opening a Probate Case: Post-Mortem Estate Planning
Post-mortem estate planning? Yes, you read that correctly. The term post-mortem estate planning is a little deceptive. No, it doesn’t mean your loved one made no plans for their estate before they died. On the contrary. Post-mortem estate planning takes place while someone is living and deciding how they would like their estate administered once they die.
Unexpected issues, especially those related to taxes, can arise for even the best-planned estates. That’s where post-mortem estate planning comes in. In a nutshell, post-mortem estate planning tries to account for unforeseen issues and reduce the tax burden on the estate and its heirs. That means, your loved one put a specific plan in place to manage certain tax issues that may crop up after their death they’re gone. Post-mortem planning also provides flexibility for the will or trust.
Post-mortem opportunities available to everyone. If your loved died without a will, any post-mortem planning opportunities are lost.
Post-mortem plans can be quite complex. An experienced probate attorney can help you navigate it.
What to Do When a Loved One Dies
The days following the death of a loved one can be some of the most difficult. You’re often dealing with shock and grief, and it can be tough to focus on anything else. After you’ve made all the necessary calls to the coroner and family and friends, it’s important to begin to look for your loved one’s final instructions.
Funeral Arrangements and Will
These documents are often stored in a safe place in the home, at an attorney’s office, or in a safe deposit box. In addition to funeral and burial arrangements, you will need to locate the will. The will designates someone, often a family member or close friend, who will begin the probate process and oversee the estate. In Colorado, this individual is called the personal representative.
If a formal will cannot be found, search for handwritten instructions or letters. These can constitute a will in Colorado.
If there is no will, a court will appoint a personal representative. A probate lawyer can help you begin what’s called an intestate (no will) probate process.
What to Do if You’re the Personal Representative
You’ve been nominated to be a personal representative, which may or may not be expected. Nevertheless, this new role comes with important duties and responsibilities you should be aware of. Here’s a breakdown of what you need to know.
Funeral Arrangements and Assets
As the personal representative, you have some power at the onset, even before your loved one’s estate is officially open and you’re formally appointed by the court. You the authority to carry out your loved one’s wishes for their funeral and burial. You can go ahead and begin to protect their assets. You cannot, however, begin to remove or distribute any of their estate.
Being a personal representative requires you to put aside your own personal interests and act in the best interest of the estate and its beneficiaries. Your duties include:
- Taking inventory of the estate’s assets
- Opening the estate in probate court
- Managing the assets during the probate process
- Paying the estate’s final bills and debts
- Closing the estate
- Distributing assets to the beneficiaries
Filing in Probate Court
Within ten days of your loved one’s death, the will should be submitted to the probate court in the county where the decedent lived.
In Colorado, if your loved one’s estate is less than $50,000 and there is no real estate involved, you can likely avoid probate court by filing an affidavit to distribute assets.
Formal vs. Informal Probate Court
Colorado has a reasonably flexible estate administration system. Most of the time, you can choose how to open and close the estate – formally or informally. A probate attorney can help you decide which is best for your situation. Here’s a breakdown:
- Informal probate (easy estates)
Informal probate occurs when issues surrounding the estate are relatively
For instance, no one contests your loved one’s will. Another example is your loved one didn’t have a will, but the estate’s potential heirs all agree on what the assets are and who should be its personal representative.
- Formal probate (complicated estates)
Formal probate often occurs when an estate’s heirs disagree on issues and they need a court to render a decision. For example, if beneficiaries disagree on who should be the personal representative. When the original will cannot be located, you’ll also need a formal probate process.
- Closing the estate
Once you’ve paid all debts, taxes, and the estate is ready for distribution to the heirs, it’s ready to be closed. This won’t automatically happen, though. You need to finalize it in probate court.
- Informal closing
In an informal closing, you file a form with the court signifying the estate has been fully administered. Challenges to how the estate was administered are limited to one year once heirs receive assets.
- Formal closing
In a formal closing, the court approves the administration and proposed distribution of the estate and immediately releases the personal representative from liability.
Some personal representatives choose to formally close the estate, even if it was informally opened, to have the court indicate they did everything correctly.
Specific Duties and Authority
Once the probate process is underway, the court will send you written notice that you are the estate’s personal representative. Keep these letters. They are proof you can act on behalf of the estate. Various third parties you will deal with as you administer the estate, like banks and insurance companies, will need to verify your appointment.
Notify interested parties
You may have received a “notice of appointment” form in the documents sent to you from probate court. This must be sent out to all interested parties, such as creditors and heirs, within 30 days of being formally appointed personal representative. The letter will outline how the estate will be administered, the name of the probate court in which it was filed, and your contact information.
Create an Estate Accounting System
It’s important that you keep records of financial transactions and how much cash is on hand. This is done for your protection. Accounting information will be required for tax purposes and if the estate goes through a formal closing. You should provide the estate’s beneficiaries with accounting paperwork.
Within three months of becoming the personal representative you should have a written inventory of the estate’s assets. Keep all documents that support the assets’ values. Provide copies of the inventory to interested parties. You’ll also need this information if the estate goes through a formal closing.
Pay the Bills
At this point, all known creditors – credit card companies, lenders, doctors, etc. – should have received your “notice of appointment” letter. However, there could be unknown creditors. Publish a “notice of appointment” in the newspaper to alert any other creditors. If no one responds within four months of after your newspaper announcement, the claims should be forever barred.
Legitimate claims will come to you in the mail. Do not pay any oral claims. If you disagree with a claim, write the creditor within 60 days. It’s good practice not to pay any claims until you have determined what they are.
Paying the Family and Yourself
In Colorado, a surviving spouse and minor children can receive a “family allowance” while the estate is being administered. This allowance is $24,000. The court can approve changes to the amount.
As the personal representative, you may pay yourself for your duties. Your compensation is subject to a “reasonableness test.” While most family members serve as a personal representative without pay, if you choose to pay yourself, you must keep detailed records of your duties. Your pay will be taxed as income.
Your loved one’s income taxes and their estate’s taxes are filed separately. You will always file a final income tax return for the decedent, even if they haven’t paid income taxes in years. Your loved one’s taxable year ends on the date they passed. So, any income and deductions are included up to that date.
If your loved one’s estate is large enough, you may have to file federal estate taxes. In 2018, estates valued at $5.6 million or less are exempt from federal taxes. Bear in mind, this threshold can change from year to year.
As of 2018, there is no Colorado estate tax. Here’s some background: Colorado’s estate tax is based on the federal tax credit called the “state death tax credit.” Federal legislation eliminated the “state death tax credit,” which effectively eliminated the Colorado estate tax for deaths occurring after December 31, 2004. If federal law changes, Colorado may begin to collect estate taxes again.
As a personal representative, you have a fiduciary duty to act in the best interest of the estate. You can be held liable for:
- Not managing the property well
- Stealing funds from the estate
- Not following the will
- Failing to pay beneficiaries
- Any loss to the estate or unrealized gains
- Breaching other fiduciary duties
Colorado Will Disputes and Going to Court
Here’s the good news: most estates go through probate with few, if any, issues. Family members get along. The will isn’t disputed. The personal representative appropriately administers the estate. No problem. Sometimes, though, the probate process isn’t so rosy. There may be discord among heirs. Perhaps your loved one changed their will, and someone was left out. Or, the personal representative is doing a poor job managing the estate. All these issues can lead to probate litigation.
If you are facing any type of serious issue with your family’s estate, you will want a seasoned probate lawyer to help protect your inheritance and your loved one’s final wishes.
What is probate litigation? When a probate attorney files a lawsuit in probate court over, say, a contested will, that’s probate litigation. Filing a lawsuit may become necessary for a variety of reasons. While most families will try to amicably work out their differences, some conflicts can’t be resolved on their own. Here are some common scenarios that most often lead to a probate lawsuit:
- Intense sibling rivalry
- A remarriage with no prenuptial agreement
- Someone is omitted from an estate
- Personal representative misconduct
Contesting a will in Colorado is an arduous process. It requires going to probate court, and the burden of proof is placed on the contester. Most wills are contested for three reasons:
- Undue influence
- An informal will
- Mental incapacity
Undue influence occurs when someone is pressured to include or exclude people in/from their will. For example: You suspect your mother’s neighbor was behind the reason your mom changed her will to exclude you and your siblings.
Failure of formality takes place when someone creates a will and does not follow the state’s formal requirements. For example: Your siblings signed your father’s will instead of two impartial witnesses.
Mental incapacity, as it relates to a will, is when the testator (person creating the will) is not of sound mind when the will is made. For example: Your grandmother suffered with dementia when she wrote her will.
All these examples are grounds to contest a will.
The only people who can contest a will are “interested parties.” An interested party is someone who will receive part of an estate, or it can be someone who would receive part of the estate under a previous will but who is not included in the current one. Most of the time, an interested party is a family member, but it can include other people or even a charitable trust.
If you suspect your loved one’s will was improperly prepared or is invalid, a seasoned probate lawyer can help you assess the situation.
Sometimes people think trusts and wills are the same. However, they are different. The key distinction between the two is a trust goes into effect as soon as it is created. A will takes effect only after someone dies.
Like an estate, a trust has someone who manages it: the “trustee.” And, like an estate going through probate, a trustee has a fiduciary duty to ethically and efficiently manage the trust. This includes, good accounting, paying taxes, following the trust’s terms, and keeping personal assets separate from the trust.
When a trustee breaches their duty, a court can remove them from their role if it’s found that would be in the best interest of the trust and its beneficiaries. A trustee who has mishandled a trust can also be held liable for losses the trust may have incurred, and they can be ordered to pay back misappropriated funds.
Breach of Fiduciary Duty
The Fiduciary and Their Duties
What is a fiduciary, you ask? A fiduciary is the person who serves as an estate’s personal representative or a trust’s trustee. Under Colorado law, the fiduciary has duties to the estate/trust, its heirs, and other interested parties, like creditors. The fiduciary is held to a specific set of duties:
- Loyalty – Act in the best interest of the estate/trust, its beneficiaries, and other parties
- Impartiality – Treat all parties the same, distributing assets according to the will
- Sound Investment – Follow the Colorado Uniform Prudent Investment Act, which requires reasonable care, skill, and caution when making investment decisions.
The fiduciary is expected to maintain good records, make wise investment decisions, and keep heirs informed. While most fiduciaries are ethical and prudent, there are times when there’s a breach of fiduciary duty.
You may automatically think all breaches of fiduciary trust are malicious, but that’s not always the case. Sometimes a fiduciary my not have enough knowledge about, say, bookkeeping or investments, to be successful in their role. Other times, a fiduciary knowingly mismanages the estate/trust for their personal gain. Both instances are a breach of duty and carry serious implications to the estate/trust.
Spotting a Breach of Trust
- Poor record-keeping
Example: You have noticed assets disappearing over several months. When you ask
about them, there’s no record of where they went. Similarly, you’ve asked to receive a breakdown of estate-related transactions, but the fiduciary cannot supply invoices or receipts.
- Comingling of assets
Example: Records indicate a decline in the trust’s checking account in recent months. The withdrawals do not match invoices and receipts. It becomes clear the trustee has supplemented their personal income with the trust’s money.
- Showing favoritism
Example: A trust has two sets of beneficiaries. Group A is currently paid from the trust’s income. Group B will be paid from the trust’s principal balance when Group A dies. It would be unfair to Group B if the trustee depletes the trust’s principal to benefit Group A.
All of these are examples of a breach of fiduciary trust. If you suspect your fiduciary is acting in an unethical way, a probate attorney can help you determine whether an investigation is warranted.
Colorado Supreme Court – www.coloradosupremecourt.us
Denver Probate Court – www.courts.state.co.us/Courts/Denver_Probate
Glossary of Probate Terms – Colorado Judicial Branch Probate Glossary