What Happens If You Die Without a Will in Colorado?

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Losing a loved one can be difficult, no matter where you live. But if you’re in the state of Colorado handling the estate of a deceased family member, chances are you can expect a relatively simple probate court process compared to other states. In particular, heirs have several options for transferring assets based on the type and value of the property. 

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Those who require the legal sign off to manage an estate can file for probate through the state courts. And those handling a smaller estate can resolve it out of court with just an affidavit to transfer assets. 

Ultimately, probate serves as a mechanism for loved ones to tie up the loose ends that people leave behind when they die without a will.

Colorado’s Intestacy Laws Explained

The assets and belongings someone leaves behind form their estate when someone passes away. Ideally, everyone would leave behind a will to direct the distribution of those assets, but according to a Gallup poll, only 46 percent of Americans report that they have some type of estate plan in place. For those who don’t make a will, intestacy laws can help create a framework for estate administration. 

Colorado’s intestacy laws establish the priority of appointing a personal representative, the personal representative’s responsibilities for paying the estate’s debts, distributing the assets, and ultimately who inherits the estate’s assets.

The probate estate

Intestacy laws only apply to the probate estate, which may not be everything your loved one left behind. When you are trying to find the first step to take when dealing with a loved one’s estate, start by identifying what, if anything, belongs to their probate estate.

Even without a formal estate plan, many people create non-probate transfers for different property types, as there are different things that can and can’t be paid out of an estate account. For example, banks usually offer the option of naming payable-on-death beneficiaries when you open a bank account.

Life insurance and retirement accounts also ask the account holder to name a beneficiary. A payable-on-death beneficiary is just one way people in Colorado can make non-probate transfers of their assets.

Colorado also recognizes beneficiary deeds, which are deeds that property owners can file for their real estate while they are still alive. The beneficiary deed designates the next property owner, effective upon the current owner’s death. Best of all, it can be revoked before death and does not alter the current owner’s interest during their life.

Finally, the other major way to pass long non-probate transfers is by placing the property in a trust. Trusts can hold all types of property, from real estate to stocks to cars. Many people establish living trusts during their lifetime and maintain complete control over them by naming themselves both trustee and beneficiary. They also plan for their passing by naming a successor trustee and the future beneficiaries. 

How Does Probate Work in Colorado If There Is No Will?

Colorado offers two ways for families to navigate the probate process when their loved one dies without a will. One is by affidavit, and the other is by opening a probate case so you or another close loved one can be authorized to manage the estate. This type of authorization is done via letters of administration.

Small estates and personal property

First, estates valued at less than $70,000 can often proceed outside of court through the small estate process. Family members can use a short, simple affidavit to collect assets. Unfortunately, it cannot be used to transfer real property like houses.

The process takes place entirely outside of court. The person collecting the assets on behalf of the heirs signs the affidavit in the presence of a notary and then presents the affidavit to any asset custodian, like a bank or landlord. 

The Colorado Department of Motor Vehicles requires its own version of the small estate affidavit for the transfer of car titles when no probate case exists.

Larger estates and real estate 

Any estate, regardless of size, can go through the probate process. After someone files a petition, the court appoints a personal representative to facilitate the business of the estate. That includes paying any bills and debts and distributing any remaining assets and property in the estate.

Most estates in Colorado go through what is known as unsupervised administration. The court remains available to settle conflict but does not oversee or approve the day-to-day operations of the personal representative. 

Usually, only estates with very high conflict among personal representatives or heirs or those with sensitive assets fall under supervised administration. Besides being burdensome to the court, it adds to the time and expense required to conclude an estate.

How to open a probate case in Colorado without a will

Colorado makes it relatively easy to open a probate case without an attorney. All of the forms and instructions are available free online on the Colorado Judicial Branch website. The state also offers two types of probate proceedings – formal and informal. 

As you might expect, informal proceedings are faster than formal ones. An estate can qualify for informal probate if the person applying to be the personal representative has priority for the appointment. Priority of appointment echoes the same method of determining who inherits. State law creates a ranked list that applies to any family situation. 

Estates need to follow formal proceedings when the applicant lacks priority for appointment. The court implements a waiting and notice period before appointing the personal representative to address the lack of legal priority. Competing applicants can object and file their own petitions for appointment as the personal representative.

If any objections arise, the court can have a hearing to determine who to appoint. 

What happens after the appointment of a personal representative

When the court appoints a personal representative, it issues letters of administration. Those letters serve as proof of the personal representative’s authority to act, and that is the document you can show the bank or anyone else requiring proof of your ability to act on the deceased’s behalf.

The personal representative pays the estate bills and distributes any remaining property and assets. Ultimately, at the end of the probate process, all of the decedent’s assets will be transferred to their new owners.

During unsupervised administration, the personal representative and heirs usually have no additional contact with the court unless something goes wrong or conflict arises.  

Who Typically Inherits Assets in Colorado If There Isn’t a Will?

Anytime someone dies without a will, the laws of intestacy guide the order of inheritance. Inheritance hinges on the decedent’s marital status and the makeup of their family tree. Besides the surviving spouse, the decedent’s descendants are most likely to inherit. Descendants refer not only to the decedent’s children, but also their children’s children, and so on.

Many people assume that a surviving spouse inherits everything, but that only happens when the decedent dies with no descendants. It can also happen when any descendants are also the descendants of the surviving spouse, and the spouse has no other descendants. 

If the decedent and spouse have descendants and the spouse also has descendants from another relationship, the spouse only inherits the first $225,000 of the intestate estate plus half of the remainder. The decedent’s descendants inherit everything else.

Alternatively, when someone dies with a surviving spouse and descendants from a relationship other than that spouse, the spouse inherits the first $150,000 and half of the balance. The decedent’s descendants inherit the remainder. 

When the decedent lacks descendants, but their parents and spouse survives, the spouse inherits the first $300,000 plus three-fourths of the balance. The parents can inherit the remaining portion of the intestate estate. 

Children take priority when no spouse survives, and they inherit the entire intestate estate, regardless of whether the decedent’s parents also survive. 

Frequently Asked Questions: Dying Without a Will in Colorado

Although the probate rules apply to all estates, it can still be challenging to untangle how they apply to your specific situation. An estate attorney can provide the most detailed, specific information for your situation.

What happens when your parent dies without a will?

A child’s inheritance varies based on whether their parent was married at the time of death, and if so, whether they were married to the child’s other parent or someone else. 

Children can inherit their parent’s entire estate if the parent was unmarried at their death. However, if they were married, then the surviving spouse receives at least a portion of the estate. If a child’s parents were married to each other at the time of one parent’s death, then the surviving spouse inherits the entire estate, unless either parent had a child outside of that relationship.

As mentioned earlier, if the children’s parents were married, but the surviving spouse has a descendant from another relationship, the spouse gets the first $225,000 of the intestate estate plus half of the remainder. That leaves the decedent’s children with the balance of the estate.

Alternatively, suppose a child’s parent dies without a will and was married to someone other than the child’s other parent. In that case, the children inherit a greater portion – they inherit half of the estate after the $150,000 is set aside for the spouse.

Under the laws of intestacy, all biological and legally adopted children inherit equally, regardless of the closeness of the individual relationships.

What are a surviving spouse’s rights if there’s no will?

The surviving spouse’s inheritance depends on the existence of the decedent’s descendants or parents. 

If the decedent and spouse have descendants and the spouse also has descendants from another relationship, the spouse only inherits the first $225,000 of the intestate estate plus half of the remainder. The decedent’s descendants inherit everything else.

Alternatively, when someone dies with a surviving spouse and descendants from a relationship other than that spouse, the spouse inherits the first $150,000 and half of the balance. The decedent’s descendants inherit the remainder. 

When the decedent lacks descendants but their parents and spouse survives, the spouse inherits the first $300,000 plus three-fourths of the balance. The parents can inherit the remaining portion of the intestate estate. 

What happens to bank accounts when someone dies without a will?

If someone dies without a will and leaves behind bank accounts, first find out whether the decedent named a payable-on-death beneficiary for any accounts. The bank should provide this information but may require a death certificate before disclosing the beneficiary. The beneficiary can collect the account outside of probate by following the bank’s procedures if one is in place. 

When the bank account lacks the payable-on-death designation, survivors can then use either the small estate affidavit or request letters of administration from the probate court. 

Who is considered next of kin in Colorado?

For the purposes of inheritance, the next of kin can be identified through Colorado’s laws of intestacy. It may be the surviving spouse, children, grandchildren, parents, siblings, grandparents, or even the aunts and uncles of someone who dies. Determining the next of kin depends on each family structure. 

Generally, the next of kin will be the surviving spouse. If none exists, the intestacy laws look for descendants of the decedent, which could be children, grandchildren, or others. If no descendants exist, then the laws would look up on the family tree for parents, siblings, grandparents, or aunts and uncles. 

Where do you file for probate in Colorado?

Anyone who wants to file a probate application can do so in the district court for the county where the decedent lived at the time of their death. Only Denver county has a constitutionally separate probate court. For all other counties, search for your district court online at the Colorado Judicial Branch website.

Planning Can Help You Avoid Dying Without a Will in Colorado

Many families feel resentful when state law governs the distribution of assets or the court becomes involved through appointing a personal representative. If possible, use this information to urge loved ones to make wills or engage in other types of estate planning. 

If your loved one has already passed, try to view probate as a tool to help you wrap up the business of their estate. The letters issued by the court will open the doors needed to close bank accounts, transfer real estate, and more.


Sources:
  1. Jones, Jeffrey. “How Many Americans Have a Will?” Gallup 23 June 2021, News.gallup.com.
  2. “Colorado Revised Statutes Title 15. Probate, Trusts, and Fiduciaries.” FindLaw 1 Jan. 2019, Codes.findlaw.com.

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