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  • Writer's pictureDouglas S. Holden

What Is Probate?

Probate is a legal process wherein people get what they are supposed to get when someone dies. In most states, probate can be fairly simple, but in other states, it can be the epitome of what we all fear. In Colorado, we follow the Uniform Probate Code which is fairly straightforward.

What many people do not understand is that a probate court only has jurisdiction – or power - over what is deemed as “probate property.” Not everything that someone owns at death is probate property. Generally, what someone owns at his death only in his own name is probate property. So, if the husband and wife own a home in joint tenancy and the wife dies, that house is not probate property. Jointly held real property, and some personal property, passes automatically to the surviving tenant upon the death of the other tenant. Since there were two joint tenant owners, the property is not probate property. The same is true where there is a beneficiary of property, as with a life insurance policy or a POD designation (payable on death) as with a bank account. On the other hand, if real property, and some personal property, is owned by multiple parties as “Tenants in Common, the property will generally have to be probated.

If there is no probate property or if the value of probate property is relatively low, there will not need to be a probate. One exception is when a person owns a home (or other real property) where there is very little equity. Regardless of low equity, there will have to be a probate action in order to pass title to the real property after the owner’s death, even if there are only a few dollars of equity – or none. The reason for this is that one can only pass title to real property by use of a deed. Only an owner can sign the deed. So, when a sole owner dies, there is no one available to sign the deed. A probate needs to be opened so a court can appoint a personal representative. This is true even if the owner left a Will and named a personal representative in the Will. That person has no power to sign a deed until a court issues “Letters.” The Letters is the document that gives the personal representative the legal authority to sign a “Personal Representative Deed” thereby passing title.

Also, if one dies owning securities like stocks and bonds that are not owned jointly or that do not have a POD, remember those securities are probate property. However, even if they are owned with a POD, some brokerage houses require Letters to be issued, even though the law does not.

If a probate is required, there are a bunch of documents that need to be prepared, signed, and filed with the court. There are several different types of probate actions, like unsupervised or supervised, and those that can be closed formally or informally. This is beyond the scope of this article, unfortunately.

Remember the goal is to get the decedent’s property to those who are entitled to it. Most probates go smoothly and take little time and are fairly inexpensive, but others are complicated, time-consuming, and expensive.

© DOUGLAS S. HOLDEN, P.C. All Rights Reserved.

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