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

If you are the nominated personal representative of a Will or the successor of an estate, you have a lot of questions to answer. The most important one is where to start: File with the court or not? For a quick overview, please see Colorado Bar Association’s article: So Now You Are A Personal Representative.

What that article does not tell is whether you even need to file a probate proceeding. There are two rules that require filing: (1) If the estate owns real property (exclude properties in joint tenancy or beneficiary deeds) or the estate has more than $68,000 (2019) (might be $70,000 for 2020, but CPI has not released all the numbers) less liens and encumbrances. If you do not meet that criteria, you can use this form: Affidavit for the Collection of Personal Property But again remember:

  • 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 $68,000/$70,000 (see above) 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
  • You swear you are the successor to the estate

With the 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.

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, following the Will’s terms. If there is no Will, you must follow the Colorado Revised Statutes regarding intestate succession.

Among others, there is one disadvantage not filing a probate proceeding: Probate proceedings reduce the creditor period. If you do not file a proceeding and publish notice, you must wait one year from the date of death for all creditor claims to expire (there are exceptions to this). If you file and publish notice, you can reduce this period down to four (4) months for unknown creditors. You can also cut it down to 63 days if you give specific notice to one creditor and disallow its claim.

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

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