Filing for Probate? Consider a Small Estate Affidavit (Updated 2020)

If you are the nominated personal representative of a Will, you have a lot of questions. The most important one is where to start. Do you need to file a probate proceeding or not? (For a quick overview of your duties, please see Colorado Bar Association’s article: So Now You Are A Personal Representative.)

There are two rules that require probate filing: (1) If the estate owns real property (exclude properties in joint tenancy or beneficiary deeds); (2) or the estate has more than $7,000 (2020) less liens and encumbrances. If you do not meet these criteria, you can use this form and not file a proceeding: Affidavit for the Collection of Personal Property

To reiterate those rules:

  • There is no real property in the decedent’s sole name (check the Assessor’s Online Lookup 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 $70,000 (see above) in assets less liens and encumbrances;
  • At least ten days have elapsed since the date of death;
  • There is no appointment of a personal representative pending in this district or any other state; and
  • You swear you are the successor to the estate

With the Small Estate Affidavit, you can: (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. That means you can do everything as the personal representative but without a court proceeding.

However, anyone who uses the Affidavit is still held accountable for any action they make on behalf of the estate. If there is a Will, follow the terms of the Will. If there is no Will, you must follow the Colorado Revised Statutes regarding intestate succession.

One major disadvantage of not filing is the creditor period. If you do not file a proceeding, you must wait one year from the date of death for all creditor claims to expire (there are exceptions to this). If you file an proceeding and publish notice, you can reduce this period down to four (4) months from teh first publication date.

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

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