What is “formal probate,” and when am I required to use it? If not required, why would I still choose it?
What is “formal probate,” and when am I required to use it?
Unlike informal probate, a process by which the clerk signs the order appointing the Personal Representative (click here for a post on this topic), formal probate requires that a judge sign the order.
You can use formal probate in numerous situations, including:
- for appointing a Personal Representative of an Estate
- for an order that declares the heirs of a Decedent
- to determine whether a contested Will should be admitted to probate
If a Decedent dies leaving a valid Will that has no “irregularities,” the Will is not required to go through formal probate. However, every Will with an irregularity must go through formal probate. Examples of irregular Wills include Wills that are written completely in the Decedent’s own handwriting (holographic Wills); lost or destroyed Wills; and improperly executed Wills.
- Two of the JDF forms commonly used in formal probate are: JDF 920 - Petition For Formal Probate Of Will And Formal Appointment Of Personal Representative
- JDF 921 - Order Admitting Will To Formal Probate And Formal Appointment Of Personal Representative.
If you are unfamiliar with JDF Forms, you can read about them in our blog post What are JDF Forms and Am I Required to Use Them?
If not required, why would I still choose it?
It is true that it takes more time to appoint a Personal Representative in formal probate than it does in informal probate. However, formal probate has several advantages over informal probate, namely that, if done properly, the orders issued by the Court in a formal proceeding are not as easily challenged as orders in an informal proceeding.
Likewise, the formal probate process should be used if there is family discord, questions about the identities of the Decedent’s proper heirs, or multiple Wills.
This posting is for the purpose of general information only. It addresses the general application of Colorado probate law. It is not legal advice. Each individual situation requires a careful review of the facts in order to properly apply the law to the facts.
If you have any questions about probate in Colorado or the duties of a Personal Representative, you should consult with an attorney. There are also clinics in most counties where you can briefly meet with a volunteer probate attorney.