Family member has died. Do I need to file a probate proceeding? Consider a Small Estate Affidavit.

As the nominated personal representative or the successor of an estate, you have a lot of options to consider. Whatever you do consider, please also review the duties you have to the estate in general, including to the creditors and to the beneficiaries of the estate from the Colorado Bar Association’s article: So Now You Are A Personal Representative. This article gives enough information to get started; however, one thing it does not mention is whether you even need to open up an estate probate proceeding.

If the estate you are administering does not have real property in the decedent’s sole name (exclude properties in joint tenancy) and the estate has less than $64,000 in assets less liens and encumbrances, you may be able to avoid a formal probate proceeding altogether. On the Colorado Judicial Branch website, you may use a signed Affidavit for the Collection of Personal Property if it meets the following criteria:

  • No real property in the decedent’s sole name (Check the Assessor’s webpage and the Mesa County Clerk and Recorder to review the chain of title to the property and the vesting deed.) and the estate has less than $64,000 in assets less liens and encumbrances;
  • At least ten days have elapsed since the date of death; and
  • There is no appointment of a personal representative pending in this district or any other state.

If you meet the criteria above, you may be able to use the Affidavit in the following ways: (1) collect assets from a financial institution; (2) transfer or sell vehicles in the decedent’s name (the DMV will require the use of its own form); (3) authorize cremation or deal with funeral services;  (4) deal with creditors of the estate; or, but not limited to (5) distribute assets to heirs.

Anyone who uses this the Small Estate Affidavit is still held accountable for any action they make on behalf of the estate. If there is a Will, follow the Will’s division of property after creditors have been paid. If there is no Will, you will have to divide any assets after creditors are paid by intestate succession pursuant to the Colorado Revised Statutes. The statutes are somewhat complicated if there are no known next of kin.

There is one disadvantage to using a small estate affidavit as opposed to a probate proceeding, even if you do not need to file: They have different creditor periods. With any unknown or known creditor of an estate, generally creditors have a year from the date of death to claim against the estate. The most common claims are credit card debt. If you file a probate proceeding and publish the Notice to Creditors in the local newspaper, it cuts the creditor period for unknown creditors to four months. C.R.S. 15-12-801 (Use Lexisnexis’s website to review statutes). The same works for known creditors you can prove they had actual notice of the published notice. You can also cut it down to 60 days if you intentionally give notice to a creditor of the estate. (Review the same statute). If they do not file their claim or petition to allow their claim, it is barred forever (there are always exceptions, but they are not covered here). The reason why creditor periods are important is if you distribute the assets to heirs before the creditor period expires, you might be liable to that creditor if they have a valid, timely claim.

 

If you need assistance with the estate administration, please contact Reams & Reams at (970)-242-7847.

 

The material presented on this site is included with the understanding and agreement that Reams & Reams is not engaged giving legal advice by posting material on this website. The services of a competent professional should be sought if legal or other specific expert assistance is required. Further, the firm does not wish to represent anyone desiring representation based upon viewing this website in any state or jurisdiction where this website fails to comply with all laws and ethical rules. The firm is also only licensed to practice in the State of Colorado. Any material presented on this site may be different or incorrect in another state. Please consult any attorney before using any of this information.