Most people have heard the term probate, but a common question asked to an estate planning attorney is, what is probate? The article below has been drafted by a Denver estate planning attorney in an attempt to provide a short definition of probate.
The legal definition of probate would be something like: the legal process of administering an estate of a deceased person, resolving all claims and distributing the deceased person’s cash, property and assets. During a continuing legal education course, I heard an estate planning attorney define probate as, “a lawsuit filed against yourself that you end up paying for, in order to give away your money and property.” I found this definition comical and in many ways true!
Each state may have somewhat of a different probate process and there are states that are UPC states and non-UPC states. UPC stands for the Uniform Probate Code. In Colorado, there are generally three “types” of probate situations. You can have the small estate whereby the value of the estate is less than $50,000 and there is no real property. Heirs can collect assets by using an affidavit and not opening probate action through a court. You can have an uncontested estate, sometimes referred to as an informal estate. This is generally allowed when there is a valid will or clear intestacy, no contests are expected and there is a qualified personal representative ready to be appointed. Under this situation, the court has a limited role in the administration of the estate, but the court will still act to ensure the will or intestacy laws are followed. Of course, you have the contested estates or the issue(s) of an invalid or questionable will. This may be referred to as formal probate and is required when a will is being contested or the will is unclear and/or invalid. The court may require that the personal representative obtain approval for every transaction regarding the transfer or disposition of property. Given the circumstances, formal probate can take significantly longer than a small estate or informal probate.
Many people wish to avoid probate and many people do not seem to mind the thought of their estate (and family) going through the probate process. There are several methods to titling property that can be used to “avoid” or “bypass” probate. Assets avoiding probate are referred to as “non-testamentary” or “non-probate” assets. In some circumstances, the methods may actually work more as a deferral of probate, than as a true avoidance of probate.
If you have questions regarding your estate, please feel free to contact a Denver estate planning attorney at The McGuire Law Firm. All potential clients receive a free consultation to discuss your estate planning needs and other legal issues.
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