Probate can get a bad rap; and that’s because, in some states, it’s a lengthily, costly, and complex process. For those who live in those states where probate is a nightmare, it’s understandable that they often use estate planning tools that try to avoid probate.
Luckily, for us in Colorado, the probate process has been designed to be efficient, affordable, and straightforward, making it something that doesn’t need to be avoided. (There are, of course, complex probate cases or other reasons someone might want to avoid probate, but they often have unique circumstances that don’t apply to most of us.)
When you die, would your estate need to go through probate?
To know if your estate would require probate, the first place to start is to understand how assets are passed from the owner to someone else when the owner dies.
One way an asset can pass is by contract. An example of this type of transfer is a life insurance policy. Someone enters into a contract with an insurance company. In exchange for receiving principal payments, the insurance company agrees to pay a certain amount upon the person’s death to a beneficiary. When the person dies, the beneficiary gets the proceeds automatically. The same automatic transfer occurs when you list someone as a beneficiary for your bank account (often listed as the POD or payable on death beneficiary).
Another way assets can pass upon the owner’s death is by law. An example of this transfer is when two people own a house as joint tenants with the right of survivorship. When one of the joint tenants dies, the other one gets the property outright because they hold the right of survivorship. The same automatic transfer happens when someone signs a beneficiary deed so that upon their death, the title to the property is automatically transferred to whomever they list as the grantee.
It’s important to note that just because someone has a bank account or owns a house doesn’t mean either of those types of assets will pass outside of probate. The specific mechanism has to be in place prior to the person’s death. If it’s not, those assets can only transfer to someone else through probate.
If a deceased person held assets that do not transfer by contract or law, the way the transfer legally occurs is through the probate process. Remember, probate is the legal process by which the assets of a deceased person are transferred to their heirs or beneficiaries. While the deceased person isn’t getting a direct benefit from the probate process (they are dead, after all), their heirs or beneficiaries are. The people receiving assets from the estate can rest assured that ownership of those assets is being transferred legally and without the risk of a challenge down the road. As you might imagine, everyone comes out of the woodworks when they think they might get part of an estate. To avoid challenges down the road, the probate process provides notification so that anyone who might be interested has a specific timeframe to come forward. This includes creditors. The probate process gives creditors a window of time to make a claim against the estate. If they don’t, they can’t come back later and do so. Again, this gives the recipients of the decedent’s estate peace of mind that they won’t have someone knocking on their door asking for a debt to be paid.
If you’re not sure if probate is right for your situation, it’s best to talk with a probate attorney. They can give you information and options so that you can choose what works best for you and your family.
This website includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems.
Lauren Lester is an affordable family law, estate planning, and probate lawyer licensed in Colorado.