Frequently Asked Questions
Probates and Trust
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What's a probate?
Probate is the process completed when a decedent leaves assets to distribute, such as bank accounts, real estate, and financial investments. Probate is the general administration of a deceased person's will or the estate of a deceased person without a will.
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What are the non-probate assets?
Not every asset owned by a decedent may need to go through the probate process. Assets that were designated to pass to beneficiaries upon a person's death generally are transferred outside of the probate process. These assets may include:
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Life insurance proceeds with beneficiaries
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IRAs and 401(k)s with beneficiaries
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A bank or credit union account with a payable on death designation
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A stock or bond with a transfer on death designation
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An asset owned in joint tenancy, also known as joint tenancy with right of survivorship
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An asset that is titled in a trust
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How do you open a probate Estate?
In order for a probate estate to be opened, documents need to be filed with the court to ask for the estate to be opened and to appoint a personal representative, the person who will administer the estate. There are two ways to open a probate estate: informally and formally.
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Who are the beneficiaries of an estate if the decedent has a will?
If the decedent had a valid will, then the beneficiaries of the estate are designated in the decedent's will.
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Who are the decedent's beneficiaries if the decedent did not have a will?
A person who dies without a will has died intestate. Colorado has intestacy laws that designate how a decedent's probate assets pass upon her death if she/he died intestate. Colorado law assumes that a decedent would want her/him probate assets to pass first to her/him surviving spouse and children. If a decedent had a blended family, Colorado law contains specific terms to provide amounts to the surviving spouse or the decedent's children from a current or prior partner. If a decedent does not have children or a surviving spouse, generally her/him probate assets would be inherited first by her parents, if living, and then siblings and other relatives. This can get complicated and any specific situation should be discussed with an attorney.
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What is a trust?
A trust is different from a will. A trust document provides instruction for how a person's assets should be managed during their lifetime and after their death. The trustee is responsible for making distributions from the trust. Assets that are titled appropriately in the trust before the decedent's death will be distributed according to the terms of the trust. Assets that are not titled to the trust may need to go through the probate process.
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How can an attorney help?
An attorney with experience in estate administration can provide advice about legal rights and options, prepare legal documents, and represent people in court. For instance, an attorney can answer questions about non-probate assets or whether probate should be opened for a decedent.
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I'm nominated as personal representative or executor in the decedent's will. Do I have authority to act as personal representative before the court appoints me?
A decedent can nominate a person in her/him will as her/him personal representative. A person nominated as personal representative in the decedent's will can take a limited number of actions before being appointed by the court. Specifically, a nominated personal representative can make funeral or burial arrangements for the decedent, request that a bank search for an original will in the decedent's safe deposit box, or act to preserve the decedent's assets from premature distribution. A nominee does not have full authority to act as personal representative until appointed by the court.
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My family member died without a will. How do I know who should be personal representative?
When someone dies intestate, Colorado law gives priority to individuals based upon their familial relationship. If you have questions about who should be personal representative, you should consider speaking with an attorney.
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What is the purpose of a Personal Representative?
A personal representative carries out the wishes of the decedent regarding distribution of their assets and completes the administration of the estate. Assets are distributed either according to the terms of the decedent's will, or by Colorado law
- Can you be compensated for your work as Personal Representative?
Colorado law allows a personal representative to receive reasonable compensation from the estate for their work as personal representative. If you decide to seek compensation, keep a detailed record of tasks performed and the time spent. In general, if you or others pay estate expenses from your personal funds, the estate may reimburse you if there are sufficient funds.
Call our Northglenn office to discuss your situation and schedule a consultation
Probate is a process you shouldn't have to go through alone. When you find yourself in need of probate assistance, I offer clear and straightforward fee agreements tailored to your needs. Call Katrina S. Jones PC at (303) 252-1012 or contact me online for your free consultation.
