Probate FAQ’s

What is probate?

Probate is the process by which the court validates the authenticity of a will; appoints a personal representative); and supervises the settlement of an estate, including the payment of bills, filing of tax returns, and transfer of assets to beneficiaries. If no will is presented, the court will appoint an estate representative, called an “administrator.” The administrator carries out the same duties as a personal representative; but when a person dies without a will the court must determine the heirs of the deceased. The complexity and duration of this heirship determination process varies from state to state, but typically the remainder of the probate process, such as the payment of taxes and bills, remains the same whether there was a will or not. Estate assets are distributed to heirs at law as determined by the state’s intestacy laws, not beneficiaries chosen by the deceased who created the will.

In Colorado, probate is a pretty efficient and cheap process.  However, it is a public process.  The probate court supervises the probate process, and all the funds are distributed in “lump sums” to the heirs named in the will (assuming the will does not create a testamentary trust).  Any creditors that you have will also have a voice in the probate process.  Once the will has been probated, the will ceases to function, as your estate no longer holds any property.

What is estate planning?

Estate planning is how you can take care of your loved ones even after you are no longer able to do so. The three purposes of estate planning are: 1) Control your property while you are alive and well; 2) Provide for yourself and your loved ones if you become incapacitated/disabled; 3) Give what you have to whom you want, the way you want, when you want.

Estate planning addresses the consistent and hardest parts of life, which is when someone passes away. In my opinion, estate planning’s purpose is to help a family’s transition as they cope during such a difficult period in their lives. It is a gratifying and purpose-filled legal service.

Comprehensive estate planning takes the whole person into account. It involves selecting trusted individuals to carry out one’s wishes and drafting documents that carefully guide and protect future generations. Estate planning also goes beyond taxes, wealth, and medical decision making: Many people choose to include things like recorded oral histories and precious heirlooms in their plans. This makes estate planning not just about property, but about the legacy, values, and vision you want to pass along to future generations.

Do I need to do estate planning?

Every individual has different needs, and to receive a full appraisal of your needs for estate planning, I would advise you to schedule a complimentary initial meeting to discuss your situation.

What is a will?

A will is a document that is filed with a court after an individual has passed away. The will tells the court what the deceased person wants to have happen with their property. The court then supervises the deceased person’s Personal Representative as the Personal Representative distributes the deceased person’s property to its heirs.

What are the advantages of a will?

One great advantage of the will is that it is so well known. When most people think of estate planning, they think of a will.

A will is also generally the most affordable estate planning strategy, and so it allows some individuals to have an estate plan when they otherwise would not be able to afford one.

In Colorado, the process to administer a will (or to distribute a person’s property to their heirs) is one of the most advanced and efficient in the United States. It is therefore relatively quick and cheap to administer a will in Colorado.

What are the disadvantages of a will?

A will does not help protect you if you ever become incapacitated.
The administration of a will is public, so anyone can read what the will says. While this is not a true concern for most individuals, it is a factor to consider when deciding which estate planning strategy to adopt.

What is a Personal Representative?

The Personal Representative is also known as an Executor. This is the individual or institution named in a will who becomes responsible for carrying out the instructions provided in your will during the probate process and distributes that property to the heirs. The Personal Representative works under the supervision of a judge and has to report back to the judge on what the Personal Representative has done.

Why does an 18-year old need an estate plan?

Even an 18-year-old has property, and that 18-year old probably cares who would get their property if they pass. Also, a good estate plan also has incapacity planning, which protects the 18-year-old in case of incapacity.

Is a will or trust better for me and my family?

The decision to have a will or trust is an incredibly personal and unique decision. I advise that you meet with an estate planning attorney to help you understand your options and to help you make the best decision for yourself and your family.


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