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March 8, 2005: The Probate Process

Q: I am shocked that people are still doing these very complicated living trusts and paying thousands of dollars to "avoid probate." What is probate anyway?

A: Probate is merely a process to settle the legal matters of the deceased. In some states, it involves a long, expensive intrusive administration where the Courts are involved in every step of the process. In Colorado, the Courts empower the Personal Representative and then are not involved unless a problem arises.

The forms to start the process are readily available on the internet. For unsupervised administration with a Will, the following forms are needed: the Application (to start the process), the Acceptance (the Personal Representative saying if appointed I agree to act), the Informal Proceedings (order beginning the probate and appointing the Personal Representative), and the Letters (authorization for the Personal Representative to act).

The forms are very simple to fill out by using the information contained in the death certificate and the Will, and then adding the addresses of the beneficiaries and Personal Representatives.

These four documents, along with the Will and filing fee of $206.00 (which includes the cost to certify seven letters) are filed with the Clerk of the District Court in the County where the deceased resided.

It is also wise to submit a copy of the Application, Acceptance, and Informal Proceedings, along with seven copies of the Letters, so you can get back a file stamped copy for your records along with seven copies of the certified Letters. In case the Clerk cannot process the paperwork while you wait, also give a self-addressed big envelope with sufficient postage. It is wise to make a copy of the Will for your use (but do not take the Will apart when copying).

After receiving back the file marked documents and the seven certified Letters, the Personal Representative needs to do the Information (the form is also on the internet), file the original with the Court, and send copies to the beneficiaries listed on the Application. The Information notifies the interested parties that a proceeding has been started.

A Notice to Creditors needs to be published in a newspaper in the County in which the probate is being done. The form is on the internet and the publication cost usually runs around $50.00. The newspaper will send an Affidavit of Publication which needs to be filed with the court after the Notice is published.

Thereafter, nothing else needs to be submitted to the Court until the estate is ready to close. Then a Verified Statement (form is on the internet) is filed with the Court and copies sent to the beneficiaries listed on the Information, thus closing the estate.

The probate process is very simple and straightforward. When done by the family the cost is less then $300.00.

Some people, however, are unhappy about "probate" in Colorado after going through it. However, in every situation that I have been involved with, the "problems" would have been present whether the estate had a Will, a Trust, or no Will. In fact, one woman said, "DonÕt ever talk to me about probate again." The problem was not the probate procedure but that the estate, in fact, had two trusts that were defective, thus causing not only a probate but also the difficulties themselves.

Thus, "probate" is easily made the "bad boy" and at least in Colorado may be catching more flack than it deserves.

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