12 April 2006

Colorado's Probate Information Website Is Good

Of the 50 states and the District of Columbia, Colorado's online information about probate was ranked 5th in the nation by HALT, a law reform group aimed at improving the accessability of the courts to pro se parties (i.e. people without lawyers) and protecting people from abuses committed by lawyers.

This isn't the only area in which Colorado's probate system is exceptionally user friendly. On the merits, Colorado's version of the Uniform Probate Code establishes one of the cheapest and easiest ways of handling probate estates in the nation.

Colorado distinguishes between formal probates, where there is or could be a genuine dispute concerning the validity or existence of a Will, or the heirs of a person who died without a Will, and informal probates, which are handled summarily in a matter of minutes by a court clerk (with the title of "registrar") upon the presentation of some simple standard court forms (which are available online), an original Will, if there is one, and the filing fee. Unlike many states, in most cases, this fee is a flat filing fee, rather than a quasi-tax based upon the size of the estate.

About 93% of probates in Colorado, which are handled through the courts at all, are handled informally. And, a large percentage of formal cases in Colorado are cases handled by the public administrator, who handles estates when no one comes forward to deal with the affairs of a deceased person, who almost always uses formal probate procedures as the risk of a later contest is particularly great when no relatives can be located at the time of death. Colorado also has a liberal process of informal administration by affidavit of estates without real estate and less than $50,000 of assets, which doesn't appear in court records because this can be accomplished without any court involvement.

Colorado's probate laws also protect privacy, because they are structured so as to permit sensitive financial information like inventories and accounting of probate property to be disclosed only to interested parties, although financial disclosure can be accomplished by a public filing with a court clerk, something that is required in all probate cases in most states.

Most of the cost of probate administration in states which have not adopted the Uniform Probate Code are attributable to what is called in Colorado "supervised administration" which requires an executor to make detailed reports to the Courts regarding how estates are handled after a will is declared to be valid. Many non-UPC states make this the default method of handling estate assets. In Colorado, this is the rare exception, with the default assumption being that estates will be managed honestly that applies unless someone seeks special treatment. In Colorado, supervised administration is used in just 0.3% of informally probated estates and in just 8% of formally probated estates.

Supervised administration is usually used in Colorado only when an executor, actually called a personal representative in Colorado, is afraid of contests after the fact in a highly contentious situation, or less commonly, when an heir is concerned about misbehavior and an executor would prefer to limit the size of the bond that has to be posted by requiring himself or herself to make certain kinds of transfers only with court approval. The more usual remedy in the case of a concerned heir is a court requirement that the executor post a bond, something that is only required if specifically requested by an interested party. Dishonestly and mismanagement in Colorado's system, then, is usually dealt with through specific allegations brought by dissatisfied persons where there is a real likelihood that fraud or mismanagement is occurring, rather than procedural protections in advance.

Also, in Colorado, unlike many other states, such as New York, attorneys fees in probate cases are limited to an hourly charge for the work actually done, rather than based on the size of the estate, regardless of its complexity.

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