In an informal probate, a clerk, not a judge or magistrate, signs the order opening an estate and appointing someone Personal Representative (formerly Executor/Executrix). If there is a will, there must be no "irregularities" with it. If there is something "irregular" about the will, the estate must be opened formally.
While informal probate is sometimes simpler and faster than formal probate, there are situations in which we advise against it. For example, if you have concern that someone might challenge the decedent's will or your appointment as the Personal Representative, formal probate is a better choice. Formal probate and a specific type of notice can reduce the time in which someone can contest the documents you file with the court. This not only gives finality to court actions, but it can increase your peace of mind.
reforming a will after someone has died
Colorado is one of only a handful of states that lets a judge reform (change) a will after someone has died. The term is "reform" because it must be proven that the will did not represent the deceased persons wishes.
There are many nuances to this legal action, and the actual intent of the decedent must also be proven. We have successfully reformed a will and, in the rare circumstance you need to request reformation of a will, we can help you understand the burdens of proof and evidence required to reform the document to the testator's intent.
Formal probate is the probate process where a judge or magistrate signs the order that opens the estate and appoints the Personal Representative.
Formal probate is required anytime there is an "irregular will" such as a holographic will (a will written completely in the deceased person's handwriting) or a will that has another defect.
We always open an estate formally when there is concern that a will or the appointment of a specific person as Personal Representative might be challenged. Formal probate with a specific type of notice decreases the time period for someone to contest a request to a court and the court's decision as compared to informal probate.
what type of probate should you use
During an initial consultation, our attorneys will ask you questions, review any wills or handwritten notes that might meet the legal requirements required to be a will, and listen to you talk about your family dynamics. This information is crucial in determining whether to open probate formally or informally.
The probate process
Probate is a marathon, not a race. The first ninety days of the probate process constitute the lions share of work. Then, probate is generally "quiet" while the time for creditors to file claims passes.
After this time period passes, the estate can be distributed and closed. Depending on estate assets and family dynamics, probate can be very simple or very complicated and time consuming. Either way, we can guide you through the process or complete most of the work for you.
PROBATE FEES ARE PAID BY THE ESTATE
Probate fees and the costs of administering an estate are payable by the estate. A Personal Representative is not responsible for estate debts unless they accept responsibility for them (never do this) or have committed a breach of their fiduciary duty.
We provide guidance to our clients and are available to answer their questions throughout the probate process. As an extra step, we sometimes file pleadings with the court and follow specific procedures in order to get an order from the court for our client to either take or not take a specific action. This reduces our clients potential liability and can even serve as defense to lawsuits filed by some people who might later challenge the action taken.