Contrary to many people's assumptions, a Will does not avoid probate
If you die intestate, or without a valid Will or Trust, Colorado law determines who will receive your assets. A Will allows you to make those decisions for yourself, telling the probate court who should receive your property when you pass away. If you own any real estate in your name alone and/or other types of assets worth a total of $50,000 or more which do not have beneficiary designations, even with a Will your loved ones still have to go through probate when you die. The court will ensure that your creditors get paid, oversee the inventory and appraisal of your assets, and oversee the distribution of assets to whom you have chosen.
Probate takes some time
The last statistics I saw published on the Colorado Bar Association's website (in 2006) stated that the average length of probate in Colorado is between 9-24 months. In addition to the statutory minimum six month period, there are a number of practical and legal matters that must be accomplished which may happen easily or may run into unexpected bumps in the road. I have found loved ones consistently get frustrated about 9-12 months into the process, wondering why they are still dealing with the death of their loved one. Depending on the makeup of your estate (what type of assets, whether there is real estate outside Colorado, etc.), the ability of beneficiaries to get along, and a number of other factors, probate can take years to complete.
There are financial costs to probate
Again, the last statistics I saw published on the Colorado Bar Association's website (2006) estimated the average cost of Colorado probate at 3-4% of the gross value of your estate. This includes court fees, creditor publication costs, Personal Representative's fees and attorney's fees. Many estates are able to be probated for significantly less than that. Some estates cost more to probate. The same factors that affect the time for probate could have an impact on the financial cost for your family.
A Living Trust can provide protection for your beneficiaries
Many people I speak to want to ensure that their child's inheritance does not get split with an ex-spouse in a divorce, is not subject to their child's creditors, will not be counted as a resource for a disabled child, and/or does not get squandered by a beneficiary who is not yet ready to handle a large amount of money wisely. A simple Will offers little to no protection in these areas, while a Trust can ensure that your assets go only to the people and causes you choose.
Choosing the right plan of action for your family
Probate in Colorado is not as lengthy, expensive or complicated as it used to be, and not as difficult as it is in some other states. Consumers do need to know that it is an optional process, no matter what the size of your estate. Most estate planning attorneys offer free initial consultations during which you can discuss the pros and cons of probate for your family.
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