Let me start this blog by being very upfront: I do not handle probate cases, and I don’t represent anyone in probate.

However, I must know about the probate rules, and what happens in the probate process since I work to either minimize what goes through probate, or to make the probate process easier on those who stand to inherit property after someone has passed away.  That’s what estate planning is all about – setting up a plan that is simple to execute once someone has passed away. If you want to avoid all of what you see below, set up your own estate plan.

Sometimes the plan involves probate avoidance using a trust, beneficiary’s deed or beneficiary designation, joint tenancy, or some other method.  Often a plan involves a will, which will be the guiding document in how assets are distributed through probate.  Probate is the legal process by which assets of the deceased person’s assets are distributed to the heirs. As a general rule, wills go through probate to get assets properly distributed.  However, sometimes a person dies without a will, and the question becomes, “Now what?”

 

First, Apply for Probate

If someone dies without a will, then the surviving heirs will need to apply for probate.

You can find instructions for probate without a will online in Colorado, using Colorado JDF Form 907, Instructions for Probate Without a Will as a starting point.

 

Second, Determine Who Will Inherit Assets

You then need to determine who will inherit the assets, using the intestate statutes as your guide.  This chart gives a simple picture of what the statute says:

 

If you die with:	here’s what happens:
children but no spouse	Your children inherit everything
A spouse but no descendants	Your surviving spouse inherits everything
A spouse and descendants from you and that spouse, and the spouse has no other descendants	Your spouse inherits everything
A spouse and descendants from you and that spouse, and the spouse has descendants from another relationship	Your spouse inherits the first $150,000 of your intestate property, plus 1/2 of the balance Your descendants inherit everything else
A spouse and adult descendants from you and someone other than that spouse	Your spouse inherits the first $100,000 of your intestate property, plus 1/2 of the balance Your descendants inherit everything else
A spouse and at least one minor descendant from you and someone other than that spouse	Your spouse inherits 1/2 of your intestate property You descendants inherit everything else
A spouse and parents	Your spouse inherits the first $200,000 of your intestate property, plus 3/4 of the balance Your parents inherit remaining intestate property
parents but no spouse or descendants	Your parents inherit everything
siblings but no spouse, descendants, or parents	Your siblings inherit everything

*Adapted from original found at: https://www.nolo.com/legal-encyclopedia/intestate-succession-colorado.html

The distribution patterns shown above may, or may not reflect what you want to have happen with your assets.  Instead, the pattern reflects an orderly way to distribute the assets of a deceased person, one that has been approved by the state legislature.  A general law probably does not apply to you, but the general law can be modified by doing your own estate plan. However, the distributions listed above are not the only statutes involved, there are more laws that need to be considered…

 

1)    Will the State Get Your Property?

A common misconception is that is you don’t have a will, then the state gets you property when you die.  The thought is that If you die without a will and don’t have any family, your property will end up going to the state. However, this very rarely happens because the laws are designed to get your property to anyone who was related to you, even if they are a fairly distant relative.

For example, your property won’t go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, or cousins.  You can modify these rules by setting up a good estate plan with an attorney, which will allow you to get your property where you want it to go and not to relatives who may not have a close relationship to your family.

 

2)    The Spouse’s Share in Colorado

In Colorado, if you are married and you die without a will, what your spouse gets depends your family circumstances (as shown above).  Your surviving spouse’s share can also depend on how long you have been married and whether or not the spouse can elect a share of the estate.  A simple explanation of this rule: for every year you have been married a surviving spouse can claim 5% of the deceased spouse’s estate, up to 50% after 10 years of marriage.  With proper planning, the share of assets for a spouse can be adjusted to what you want it be. Without any planning, you are stuck with the default intestate rules.

 

3)    Children’s Shares in Colorado

If you die without a will in Colorado, each of your children’s share of assets depends on how many children you have, and whether or not you are married (as shown in the table above).

For children to inherit from you under the intestate laws in Colorado, the state of Colorado must consider them your children, legally. For many families, this is simple to determine. But it’s not always completely clear. Here’s a short list things to keep in mind:

• Adopted children. Children you legally adopted receive the same share of your assets as your biological children do.
• Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.  You would need to include them in a will or trust for them to inherit your property, or you can exclude them in a will or trust, if you like.
• Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share of your assets, as they are no longer legally your children. However, if your biological children were adopted by your spouse, that won’t affect their share of your assets because they are still legally considered your children.
• Posthumous children. Children conceived by you but not born before your death will receive a share of your assets, assuming the child lives long enough to inherit (see Survivorship period below).
• Children born outside of marriage. If you were not married to your children’s mother when she gave birth to them, they may receive a share of your estate if the court has established that you are the children’s father, legally, such as if you have adopted them.
• Children born during your marriage. Any child born to your wife during your marriage is assumed to be your child and will receive a share of your estate, unless you can prove the child was not yours.
• Grandchildren. A grandchild is entitled to and will receive a share only if that grandchild’s parent (your son or daughter) is not alive to receive his or her share.

This can be a tricky area, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.  As always, you can modify the default rules by setting up a good estate plan with an attorney.

 

Other Colorado Intestate Succession Rules

There are several other things to know about Colorado laws, a few of which are discussed here:

• Survivorship period. To inherit under Colorado’s intestate succession statutes, a person must outlive you by 120 hours.  That way, if you and someone who should inherit die close to each other in time, probate does not need to happen twice.
• Half-relatives. “Half” relatives inherit as if they were “whole.” That is, your half brother or sister has the same right to your property as he or she would if you had both parents in common.
• Posthumous relatives. Relatives conceived before — but born after — you die inherit as if they had been born while you were alive, as long as they survive at least 120 hours after birth.
• Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.  There are immigration rules that can come into play for particularly large estates, but those are the subject for a different day.

 

What Can I Do to Avoid This Mess?

As you can see, the intestate rules can be messy, confusing, and may not reflect what you want to have happen.  They also can complicate, delay, and increase the cost of probate. If you find yourself in a situation where you need to go through intestate probate, I can recommend someone to help with that process.  Or, you could plan ahead and create your own estate plan that will reflect your own desires and wishes by talking to an attorney and setting up your own estate plan. You can schedule an appointment here.