Probate & Estate Administration
Probate administration is the process by which a deceased person’s property, known as the “estate,” is passed to their heirs and devisees (people named in the will or defined by statute). Procter and Callahan, LLC can help you answer your probate questions, including the following:
- What should I do when someone dies?
- Is a probate proceeding necessary?
- Are all probate proceedings the same?
- How long does probate administration take?
- How are assets collected and disbursed if probate is not necessary?
- What do I do if probate administration is necessary?
- What is a personal representative and what are they required to do?
- How do creditors get handled when there is a probate proceeding?
- What happens when the estate has no assets, or less assets than outstanding bills?
The entire probate process is supervised by the probate court, and can be done “informally” or “formally” depending on your circumstances. The time required varies based on individual circumstances. Generally, probate administration can be concluded within about a year. The deceased may have nominated an individual to administer the estate and act as a personal representative, or there may be no will. Matters can be a bit more complicated in the absence of a will, known as “intestacy” because it may not be clear who has the responsibility of carrying out these steps.
The emotional trauma brought on by the death of a close family member is often accompanied by bewilderment about the financial and legal steps the survivors must take. A spouse who passed away may have handled all of the couple’s finances. Perhaps a person must begin probate for an estate about which they know little. And this task may come on top of commitments to family and work that can’t be set aside. Finally, the estate itself may be in disarray or scattered among many accounts, which is not unusual with a generation that saw banks collapse during the Depression.
Generally speaking, the probate process in Colorado is simpler than many other states. Some states have very complicated probate systems with numerous costs and fees that are mandated. Probate in Colorado is not this way. Of course, any estate can be complicated depending on the facts and individuals involved. Family disputes and misunderstandings can make even the most simple of probate matters complicated.
Procter and Callahan, LLC will consult with the personal representative or administrator of the estate to outline the probate process specific to individual circumstances and advise about the steps that should be taken. We work with fiduciaries to ensure the necessary requirements are completed either by our office or the personal representative, depending on goals, time commitments, and financial constraints. We are willing to be flexible and assist in a consultative role or a full-service capacity. The exact rules of estate administration differ from state to state and will vary according to the individual facts and circumstances. In general, a probate process includes the following steps:
1. “Lodging the will” or placing the will on file with the Probate Court. All original wills should be lodged following death. If probate is necessary, filing a petition with the probate court appoints the personal representative.
2. Marshalling, or collecting, the assets. This means investigating and preparing an inventory of everything the deceased person owned.
3. Paying bills and taxes. What taxes are payable depends on the assets of the deceased person. Whether or not the creditor bills are paid also depends on the estate.
4. Filing tax returns. A final income tax return is required for the decedent. If the estate holds any assets and earns interest or dividends, an income tax return for the estate may also be required. The exact tax returns that are required vary depending on the estate.
5. Distributing property to the heirs and those named in the will, or if there is no will, to the individuals covered by the intestacy statute.
6. Preparing a final accounting. A final accounting is filed by the personal representative with the probate court listing any income to the estate since the date of death and all expenses and estate distributions.
This list is informational only and not meant to be exhaustive or a substitute for legal advice. The timing, necessity, and specific application of each varies greatly depending on individual situations. It is important to obtain proper legal advice specific to your facts and circumstances.
Some of these steps can be eliminated by avoiding probate through joint ownership or trusts. However, in these scenarios, there are still legal requirements to be followed. But whoever is left in charge still must consider outstanding debts, tax returns, and proper distribution of property to the rightful heirs. You can make it easier for your heirs by keeping good records of your assets and liabilities. Estate planning and communication with family and loved ones usually simplifies the process, and reduces legal costs.