The short answer to this question is NO!  A will does not avoid probate.  Probate is actually the legal process designed to implement wills and get the assets of the deceased person to the named beneficiaries.  The probate process is exactly how a will is supposed to be proved, carried out, and administered.  However, having a will does help with probate.

When you have a will, probate is a lot less formal and a lot less involved, so there is less work for those you leave behind.  Probate with a will ensures that assets go to the correct people and that there will not be a lot of confusion, and hopefully, not a lot of fighting after you are gone.  Probate with a will also doesn’t need to look like a full court trial in most cases, since probate is usually simpler with a will than without.  Of course, there are different ways to avoid probate, but just having a will isn’t one of them.

A Will In Colorado Guides Probate

If you have a will that dictates where your assets will go when you pass away, then the will is the guide for probate.  The will dictates who gets assets, called your beneficiaries, and says who will be carrying out your wishes, called your personal representative.  The probate court will want to see and ensure that your personal representative is following the correct steps of probate and that assets are going to the correct people.  The court’s oversight is part of the positive and appealing aspect of the probate process, since having a court oversee the entire process and ensure assets end up in the correct place can avoid mistakes, conflicts, and outright malfeasance or stealing of assets.  When actions taken and distributions need to be supervised by the court, there is less of a chance that a personal representative will not give assets to the correct person, or will not take the correct steps to get assets where they are supposed to go.  The probate process being supervised by a court helps ensure things go the right way after someone passes away.  But, the will is the guiding document that tells everyone who should receive assets and how those assets should be distributed in probate.

 

Not All Probate Proceedings Are the Same

There are different levels of probate proceedings.

The lowest level of probate is an informal probate or unsupervised administration.  In this most informal level of administration, the personal representative mostly works autonomously, and just needs to check in with the court and file certain things with the court, like an inventory of assets, accounting report of what debts have been paid, and court filings to show what was done and to close out the case.  This informal method is mostly administrative, and doesn’t involve a lot of active court involvement, but rather the court acts more as a backstop and is fairly passive in the administrative process.  This is usually the level of probate involved when a person has a will.

The next level of probate is formal administration, where the court is more actively involved and needs to be contacted more frequently as the probate process takes place.  The personal representative needs to run things by the court and needs the court to be involved much more than during the informal process.

There is also a level of court supervised administration, where the court is involved in nearly every step of the process.  This can end up looking more like an entire court hearing, almost looking like a trial, and that can be time consuming and expensive for those who are attempting to carry out the instructions of a will.  Often, this level comes into play when someone fights a will, or the personal representative seems to be failing in their duties.  In such cases, the court can step in and require more supervision of a probate case, so that assets go where they are supposed to go.

If there is no will, then informal administration will likely not be an available option.  Instead, the probate process will involve figuring out who should receive assets under the intestate statute, which is the law that dictates where assets go when someone dies without a will.  This process is more involved and more formal than what can happen with a will, because the statute is dictating what happens to assets, instead of the will. The Colorado intestate statutes can be confusing and if relied upon, can result in your assets going somewhere you did not intend.  It is far better to have a will to guide probate than to simply rely on the default rules and statutes that don’t take into consideration your own preference and desires.  Each level of probate does take time and work, so you want to consider how much time and work you want to leave to your personal representative when you are gone.

 

Probate Can Be Avoided, But Not With Just a Will

Wills are not the only way to transfer assets at the time of your death.  Many financial accounts, retirement accounts, life insurance policies, and annuities have beneficiary designations connected to the accounts.  A beneficiary designation will say who receives the money or asset in such an account when the owner passes away.  A beneficiary designation happens outside of, and before probate of a will, so using a beneficiary designation is one way to avoid probate.

In Colorado, you can also use a Beneficiary Deed to transfer real estate assets to your beneficiaries without needing to go through probate.  A Beneficiary Deed is essentially a transfer on death deed, so real estate would transfer to the named beneficiaries in the deed, provided all of the necessary requirements are met for the transfer to happen.  If a Beneficiary Deed is properly done, then real estate would most likely not need to go through probate.

Using a trust is another way to avoid probate.  If you set up a trust and put assets into the trust, then the assets owned by the trust will not need to go through probate because the trust will control what happens to the assets.  A trust doesn’t die with you, so the trust continues to exist after your death, and the trust will dictate what happens to your assets after you pass away.  A trust is an alternative to a will and not subject to the probate process.

 

Wills Go Through Probate, Not Avoid Probate

Probate is the proper process to carry out the instructions of a will and get assets to the named beneficiaries.  Having a will helps the probate process go more smoothly and gives your loved ones the simplest path through probate.  Of course, if you don’t want to go through probate at all, you can use alternatives to a will and the probate process.  You want to think about how much work you want to leave behind when you are gone, or how much you want to do now, before you are gone, to potentially save your family and loved ones time and effort after you are gone.  To explore the best options for what you want in a will or a will alternative, please click the button below to schedule time to talk to an attorney who can help you understand what is best for your situation.