In Colorado, an estate typically must go through probate when a person passes away. Probate is a procedure that helps ensure the decedent’s liabilities are paid and assets are distributed to the rightful beneficiaries of the estate. Probate is generally required if the decedent owned real property in Colorado or if their estate is valued at more than $80,000. With proper planning, the probate process in Colorado can be straightforward and manageable. However, without adequate preparation, it can become time-consuming, challenging and expensive.
In Colorado, the custodian of a will or an instrument purporting to be the decedent’s will has up to 10 days from the date of death to submit the original will and a certified copy of the death certificate to the Court in the jurisdiction where the decedent resided in order to start the probate estate. If a person dies without a will, probate may still be required. In such cases, the distribution of assets will follow Colorado’s intestacy laws to ensure the net assets are allocated to the rightful heirs. Once probate is opened, it will proceed as either an informal or formal probate and may be uncontested or contested by an interested person. In this article, we explore the differences between uncontested and contested probate and provide tips on how to prevent a probate from becoming contested.
Uncontested vs. Contested Probate
An uncontested probate is the simplest, fastest, and most cost-effective process, and it is the most common type of probate—especially when the decedent’s estate plan was properly executed. In these cases, the estate plan leaves little ground for interested persons or heirs to contest it. Additionally, uncontested probate minimizes legal fees and probate expenses, allowing more of the estate to be preserved for its beneficiaries or heirs.
Contested probate, on the other hand, introduces a range of complexities. It often results in higher legal fees and a significantly longer timeline. Common reasons for contesting a probate include disputes over who will represent the estate, disagreements about the distribution of assets, challenges to the validity of the will, or the decedent’s mental capacity when executing the will. Contested probates most often arise when the decedent’s estate plan is incomplete or poorly executed, creating opportunities for disagreements during the probate process.
To contest a probate, an individual must have valid legal grounds, it cannot be based solely on feelings of unfairness or emotional hurt. Discussing and sharing your estate plan and wishes with your family or friends during your life can help prevent misunderstandings or conflict after your passing and reduce the likelihood of a contested probate (click here to learn strategies for discussing estate planning with family members). Below are some of the most common legal grounds for contesting a probate:
- Potential Fraud: A family member or beneficiary has reasonable evidence that someone deceived the decedent, which resulted in a change in the will.
- Undue Influence: There is sufficient evidence to show that the decedent was pressured or manipulated into altering the will.
- Loss of Mental Capacity: The decedent was not of sound mind when executing or amending the last will, and there is sufficient documentation (medical records, etc.) to prove he or she did not have the mental capacity to make these decisions.
- Faulty Execution: The decedent failed to have the will properly witnessed and signed.
Hackstaff, Snow, Atkinson & Griess has a team of skilled attorneys who can help you understand and navigate the complexities of probate. Contact us today for a free consultation.
