Probate: The Good, the Bad and the Ugly

Though my practice is about 75% bankruptcy related, I do handle probate matters. It's never a happy occasion as we are dealing with the affairs of someone who was loved and will be missed. But the task must be undertaken. How often do you hear “Avoid probate at all costs!” It usually comes from a guy trying to sell you a trust of some sort. It's also usually bad advice. Colorado, like many other states, has adopted the Uniform Probate Code or UPC. Gone are the days of estates being “tied up for years in probate” and the lawyer charging a percentage of the estate to do the work. Those practices are long gone (unless the estate rivals the Kennedy's, in which case ignore this ad).

The UPC is a very streamlined process. An estate can be opened and administered by the Personal Representative (also known as an Executor). The forms can be filed online, the court issues Letters Testamentary (if there is a will) or Letters of Administration (if no will) and the PR is then free to administer the assets of the deceased with full legal authority. Notices must be given and published, creditors claims must be paid, fiduciary tax returns may need to be filed, real estate listed and sold, etc. All this can be done without ever seeing a courtroom. The court is there only if needed should a dispute arise.

By the way, transferring assets to a trust can be a very bad idea. A creditor can undue the trust transfer up to 4 years afterward under the Uniform Fraudulent Conveyance Act, while a bankruptcy trustee can go back 10 years! Also, if you transfer your family home into a trust, you lose the homestead exemption of $60,000.00 (or $90,000 if you are over 60). Get a second and third opinion before paying for “asset protection” trusts.

I will always give you a free consultation and will generally quote you a flat fee right away. I have 29 years experience and am licensed in all Colorado state and federal courts. Living and working in the mountains since 1991.

Got Questions? Get Answers!

Timothy Canty, Esq.
Colorado Bar #12195

(303) 670-2185