Formal v. Informal Probate – What is Right For Me?
One of the most challenging times in life is losing a loved one. Not only do you grieve the loss of a family member, but you also may need to help your family sort through the affairs of a family member who has died. Probate is the legal process to transfer a loved one’s belongings and assets to the intended recipients, or the recipients determined by law.
In Colorado, Probate generally is divided into two categories: Informal Probate and Formal Probate. Both Informal and Formal Probate require filing probate proceedings in probate Court.
Informal Probate requires some oversight by the probate court, but as the name implies, the court is not quite as involved in the probate process. informal probate is often used when the person who passed away (the “decedent”) had a will that was properly signed and witnessed under Colorado law. Under certain circumstances, even when a decedent dies without a will, the decedent’s estate may still use the Informal Probate process. For example, if the decedent was married and had no children, then generally speaking, the decedent’s spouse would inherit the decedent’s assets and belongings.
The guiding principle for Informal Probate is that the distribution of the decedents belongings and assets is straight forward and uncontroversial. In other words, you do not expect that there will be any challenge, contest, or litigation regarding transfer of the decedent’s belongings and assets to the intended or legal recipients.
Formal Probate, on the other hand, requires more Probate Court oversight of the transfer and distribution of the decedent’s assets and belongings. In Formal Probate, the Probate Court must approve some if not all of the actions taken on behalf of the estate, like paying creditors, selling assets and real estate, and ultimately distributing proceeds to the intended recipients or the recipients determined by Colorado law.
Formal Probate is most often used when the decedent did not have a will and there is no obvious succession for the decedent’s belongings and assets. Formal Probate may also be required when the decedent’s will is not clear, not properly executed or where there are other administrative difficulties in administering the will, like finding rightful heirs. Probate Courts require formal probate where the will is challenged, contested, or may be litigated by people claiming a right or interest in the decedent’s assets or belongings.
Deciding whether your loved one’s estate will go through Informal Probate or Formal Probate is not always clear. The death of a loved one often brings a family together and allows that family not only to process the grief of loss, but also to follow the intent of the decedent or the law that would typically apply to inheritance. But sometimes the death of a loved one brings about conflict among family members and others who feel they should receive some or all of the decedent’s assets or belongings. In either case, you may wish to seek the guidance of an experienced probate attorney to help you through the process.
If you have questions about probate or are in need of direct assistance, schedule a consultation with the attorneys at Ball & Barry Law.