When opening a probate in Colorado, the court will ask you to file the probate under testate or intestate, and formal or informal. Think of these as sub-categories to the overall probate. It is a way for the probate court to know what documents should be filed and how much court supervision will be necessary throughout the probate process. So, once you have determined if you need to open a probate in Colorado, what type of probate do you need to open?
Testate v. Intestate
Testate is a fancy word that means the person who has passed away left a Last Will and Testament. If the person who died, who is called the “decedent,” executed a valid will, then the probate should be opened as “testate.” When the decedent left a will, the personal representative must distribute the estate in accordance with the will throughout the probate process.
Intestate, as you could probably guess, means that the decedent did not leave a will. If the decedent did not execute a valid will or if you are unable to locate a valid will, then the probate should be opened as “intestate.” When the decedent does not leave a will, the personal representative must distribute the estate in accordance with the Colorado intestacy statute.
Formal v. Informal
While the difference between testate and intestate is straightforward, the difference between formal and informal can be a little more complicated.
In general, informal probates are opened when everyone is getting along, and no one wants to contest the validity of the will or the distribution of the decedent’s estate. Informal probates do not require as much attention from the court as formal probates.
Formal probates are typically required when someone is contesting the validity of the will or if some other form of litigation may be expected. While this may not always be expected right away, the death of a loved one can often cause issues that lead to contesting during probate.
However, formal probates are not only used when people are not getting along. A formal probate may be necessary because the heirs want to alter the interests, shares, or amounts to which they are entitled under the will or the Colorado intestacy statute. Something like this could mean you should open a formal probate. A handwritten, or holographic, will also requires formal probate.
Meet with an Attorney
As we mentioned above, the specific documents that need to be filed vary based on the type of probate that is opened. It is important that you meet with a Colorado probate attorney to determine if a probate is even required, and if it is, what type of probate should be opened.
It is not required to have an attorney when you open a probate in Colorado, but it is important you understand the probate process before you open yourself up to any liability. Schedule a probate advisory meeting with one of our experienced attorneys to learn more about probate! For more information about probate and estate planning, check out our blog.