If someone who lives in Colorado dies without leaving a will that details what should happen to their property, the law must determine who is entitled to own the person’s assets next. Probate is the court-supervised process for transferring those assets.
Who is entitled to inherit when there is no will?
When there is no will, the decedent is said to have died “intestate.” A person or entity that receives the property according to the rules of intestacy is an “heir” of the decedent.
Colorado’s Intestate Succession law determines who inherits, and in what proportion. This is where things can get complicated. The answer will partly depend on whether the decedent was married; the decedent has descendants (which means children, grandchildren, great-grandchildren, etc.); who of those are still living, and whether the decedent has living parents.
If the situation is complex, it may be helpful to make a family tree to determine who will inherit.
Once the heirs are determined, they will be listed in the initial application for probate that is filed with the court and will receive notice as interested persons.
Who takes care of probating the estate when there’s no will?
A person, called a personal representative, is appointed by the court to be in charge of the probate estate. In Colorado, “personal representative” has replaced the term executor. This person must be over twenty-one years old. Generally, the decedent’s surviving spouse has first priority to be named personal representative. If the decedent was not married or if the spouse is otherwise unavailable, then any of the other persons who will inherit the decedent’s probate property can serve as personal representative. The law determines which heir has priority to be personal representative according to his or her relationship to the decedent.
If none of the heirs opens a probate within 45 days after the decedent died, any creditor of the decedent can open a probate proceeding and become appointed personal representative.
The probate process can be confusing and varies widely for each situation. It is often best to consult a lawyer who is experienced in probate law. To better understand what lies ahead, see Bradford’s other helpful booklet, Guide to Probate in Colorado. Bradford also has all the forms needed to probate an estate, in printed form or downloadable from their website.