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What kind of probate is required if my loved one died without a Will? What documents are commonly overlooked as possible Wills?

What kind of probate is required if my loved one died without a Will? 

When someone dies without a Will, he or she is said to have died “intestate.” Partial intestacy occurs when someone dies with a Will, but the Will does not provide instructions on the distribution of all of the Deceased person’s property.  When intestacy or partial intestacy occur, the intestate estate (the portion of the estate not distributed by Will) is distributed according to statutory guidelines established by the legislature.

The distribution of an intestate estate varies depending on whether the Decedent was married, whether he or she had any children, whether the Decedent’s spouse had any children from a prior marriage, etc. Due to the numerous possible scenarios, the distribution scheme is beyond the subject of this post. It is advisable, however, to consult with an attorney or the pro se clinic in your county  to discuss the family tree and marriage(s) of the Decedent before distributing any property from an intestate estate.

In Colorado, an intestate administration can be opened formally or informally. There is also a process to have a judge declare who the heirs of the Decedent are. This provides guidance for the Personal Representative when he or she is distributing property or taking any action that requires notice to or agreement of the Decedent’s heirs.

What documents are commonly overlooked as possible Wills?

Perhaps the most commonly overlooked document that can often times qualify as a valid Will is a suicide note. When a family suffers this type of loss and is grieving, family members often do not want to highlight that their loved one took his or her own life. This can result in the family not mentioning the note to an attorney or judge. Similarly, because suicide notes are often handwritten, people often think that they cannot be valid Wills. However, suicide notes can be and are frequently admitted to probate as Wills.

Other documents that may be overlooked as Wills are handwritten notes detailing how to divide up property or instructions on what to do with a specific asset. 

While not every handwritten note constitutes a Will, these documents should be shown to an attorney to obtain an opinion about whether these documents are Wills.

More information can be found in “JDF 907 - Instructions for Probate without a Will.” This document includes a list of forms to open an estate formally or informally and to have a judge declare who the heirs of the Decedent are. General information about JDF Forms is located in our blog post What are JDF Forms and Am I Required to Use Them?

You can click the following links to read previous blog posts on formal probate and informal probate.

In some instances, an Affidavit for Collection of Personal Property can be used when an individual dies intestate. This will be discussed in a future post entitled “What is an Affidavit for Collection of Personal Property? When can an Affidavit for Collection of Personal Property be used in Colorado?”

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.

This posting is for the purpose of general information only.  It addresses the general application of Colorado probate law and is not legal advice. Each individual situation requires a careful review of the facts in order to properly apply the law to the facts. 

Matthew Maggiore