Our Denver Estate Attorney Answers Common Questions
Probate is a court-supervised procedure that determines how to distribute a decedent’s (deceased person) assets after death. Specifically, probate courts settle an estate after a person passes away.
While probate plays an important role in distributing property and paying remaining debts or taxes after a person’s death, some family members may find the process cumbersome. This is more likely to be true for families with complex estates. Probate is not always an expedient process and does not necessarily carry out the decedent’s wishes for an estate. However, for many people, probate does not have to be a difficult or time-consuming process.
During the probate process, assets are gathered up, used to pay off remaining debts or taxes, and then distributed to the estate’s beneficiaries.
Can I Avoid Probate?
You can avoid probate with the right type of estate plan. Trusts can designate your beneficiaries and pass along assets before you pass away or suffer incapacitation due to an illness. You can use a living trust to keep specific assets out of probate, which may help simplify the probate process after your passing.
There is a common misconception that you can avoid probate by not having a Will. Actually, the absence of a Will will force a probate proceeding for all but the smallest of estates. Furthermore, if you do not have a will, the Colorado Probate Code specifies how to distribute your assets to family members or other heirs, which often is not how the decedent would have desired.
Probate has a reputation for being a time-consuming and cumbersome process. While this is sometimes true for families with complex estates, the probate process generally takes six to nine months. In recent years, many states simplified probate procedures. Depending on the state, you may even be able to obtain money from an estate before the probate process concludes.
Can Certain Properties or Assets Avoid Colorado Probate Court?
Certain assets can avoid probate. As we mentioned above, assets in a living trust do not have to go through probate court. Additional assets that can avoid probate include:
- Retirement accounts with a named beneficiary
- Gifts you gave other people before death
- Funds in a pay-on-death account
- Certain types of death benefits from insurance policies
- Jointly-held property (not community property and not property held as tenants-in-common)
Do I Need An Estate Attorney?
It helps to have an attorney for the estate planning process, regardless of whether probate is involved. An attorney can help you establish a trust, Will or other estate planning documents that dictate how you want to pass along your assets. Additional benefits of using an estate attorney include:
- He or she provides experienced guidance. Some estate attorneys have decades of experience handling estates, even very complex ones. An experienced attorney can help you develop an estate plan that meets your exact needs.
- An estate attorney can rely on his or her experience to help you determine when it is necessary to update an estate plan. For instance, you may want to update your estate plan if there is a new addition to your family.
However, if your estate passes through probate court, an attorney provides multiple benefits. An attorney may be able to minimize the chances of an estate resulting in probate litigation. Preparing documents, obtaining signatures and handling creditors can be much less time-consuming with the help of an attorney.
About Wiegand Attorneys & Counselors, LLC
Our Colorado estate planning attorneys can answer your questions about probate. Contact Wiegand Attorneys & Counselors, LLC to learn more about probate court or creating an estate plan to keep assets out of probate court. To schedule a consultation with us, call (303) 625-6280 or use the contact form on our site.