Many individuals believe that simply having a will ensures that their estate will avoid probate entirely. While having a properly executed will is a critical component of an effective estate plan, the reality under Colorado law is that a will alone does not guarantee avoidance of probate.
This article examines the nature of a will, how a will is executed in Colorado, the probate process in Colorado, and why a will by itself does not circumvent probate. As a reputable wills law firm serving families across Colorado, Anzen Legal Group offers clarity on this topic and provides thorough estate planning for each client’s individualized needs with the help of experienced attorneys.
If you need assistance with estate planning, we invite you to call our office at 970-893-8857 to schedule a consultation.
What Is a Will?
A will, also called a last will and testament, is a legal document through which an individual (the “testator”) expresses wishes regarding the distribution of their assets upon death. It may also name a personal representative (sometimes called an executor) who will carry out those wishes and may designate guardians for minor children or protect other sensitive interests. The creation of such legal documents helps clarify asset allocation and avoid disputes among heirs. An estate planning attorney works with the testator to draft the document, so it conforms to legal requirements and reflects the individual’s intentions.
Key features of a will include:
- the testator’s clear intent that the document serve as their will;
- naming of beneficiaries to receive certain property or distributions;
- appointment of a personal representative to administer the estate;
- provisions for what happens if a beneficiary pre-deceases the testator;
- revocation or amendment rights (by codicil or new will);
- ensuring the will is completed and comprehensive, addressing all legal and asset considerations to facilitate a smooth probate process.
A will is often the starting point of an estate plan. A will serves to communicate the testator’s specific wishes, such as funeral preferences or asset distribution, to the relevant parties, ensuring those intentions are clearly understood and followed. However, as explained further below, it is not itself a device that avoids probate.
How to Execute a Will in Colorado
Under Colorado law, a will must satisfy certain formalities to be valid. These requirements are found in the Colorado Revised Statutes (C.R.S.) Title 15 – Probate, Trusts, and Fiduciaries, Article 11 – Intestate Succession and Wills.
The key steps include:
- Capacity and age: The testator must be at least 18 years of age and of sound mind.
- Writing requirement: The will must be in writing.
- Signature by the testator: The will must be signed by the testator, or in the testator’s name by someone else in the testator’s conscious presence and at their direction.
- Witnessing or notarization: Either (a) the signature is witnessed by at least two individuals who sign within a reasonable time after witnessing the testator’s signing or acknowledgment; or (b) the will is acknowledged by the testator before a notary public or other authorized person.
- Holographic wills: If a will does not meet the formal witness or notarization requirement, Colorado law allows a holographic will (unsigned by witnesses) where the signature and material portions are in the testator’s handwriting.
- Revocation or amendment: The testator may revoke or amend a will by executing a later will or codicil, or by act (destroying, cancelling) consistent with statute.
Once executed, the will should be securely stored, and ideally the personal representative knows its location and how to access it. Under certain circumstances, the custodian of the will must file it with the court after death. For example, C.R.S. § 15-11-516 requires the custodian to deliver the will for lodging within ten days of death if known.
A wills attorney can help ensure these formalities are followed so the document is admissible for probate and honors the testator’s wishes. Additionally, a wills attorney assists clients in determining how their assets should be divided and ensures those decisions are clearly reflected in the will.
The Probate Process in Colorado
Probate is the legal process through which the estate of a deceased person is administered under court supervision. Proper management of estate assets, including trusts, mineral rights, and property, is essential during probate to ensure an orderly transfer and minimize disputes. The probate process also plays a key role in resolving legal issues or disputes that may arise regarding the estate. In Colorado, the process is governed by Title 15, Article 12 of the Colorado Revised Statutes.
Types of Probate
Colorado generally recognizes several types of probate proceedings, including:
- Informal probate (no hearing unless necessary) – often used when there is a straightforward will and no disputes.
- Formal probate – required when there are contests, missing documentation, or other complexities.
- Small estate processes/affidavits – for estates of smaller value without real property may qualify for simplified procedures.
While each case varies, the typical steps include:
- Filing the will (if one exists) and petitioning the court for appointment of the personal representative (PR).
- The court issuing “letters” to the PR, granting authority to act.
- The PR locating and managing estate assets, paying valid debts and taxes, and preparing an inventory.
- The PR collecting appropriate notices, making distributions to beneficiaries, or addressing intestacy if no valid will exists.
- Settling final accounting, gaining court approval, and closing the estate.
How Are Assets Distributed by a Will?
A will is a foundational legal document in any Colorado estate plan, serving as the primary tool for directing the distribution of a person’s assets after death. Through a valid will, individuals can specify exactly how their property, such as real estate, personal belongings, bank accounts, investments, and other valuable assets, should be transferred to their loved ones. This ensures that family members, minor children, and other beneficiaries receive their intended inheritance in a timely and cost-effective manner.
For families in Fort Collins, estate planning is not just about listing assets; it’s about making sure those assets are protected and distributed according to your wishes. As an estate planning law firm with decades of experience, we guide you through the process of creating a valid will, ensuring that your estate plan addresses all your concerns, from providing for minor children to supporting family members and other beneficiaries. In addition to a will, your estate planning options may include trust administration and other strategies to further safeguard your assets and streamline the transfer process.
By working with a firm experienced in estate planning, you can be confident that your will is properly drafted, your wishes are clearly communicated, and your loved ones are cared for after your death. A comprehensive estate plan not only honors your intentions but also reduces the potential for disputes and unnecessary costs, providing peace of mind for you and your family.
What Are Non-Probate Assets?
Non-probate assets are a key component of a well-rounded estate plan, as they allow certain assets to be transferred directly to beneficiaries without the need for probate administration. These assets are governed by specific legal arrangements, such as transfer-on-death provisions or beneficiary designations, that ensure they pass automatically to your chosen recipients upon your death.
Common examples of non-probate assets in Colorado include life insurance policies, retirement accounts, and assets held in trust arrangements. By designating beneficiaries on these accounts or creating a trust, you can help your loved ones avoid the delays and costs associated with the probate process. This approach not only streamlines the transfer of assets but also reduces the administrative burden on your family during a difficult time.
An estate planning law firm can assist you in identifying which of your assets can be structured as non-probate assets and help you incorporate them into your estate plan. Working with a lawyer ensures that your plan is valid, tailored to your specific needs, and compliant with Colorado law. By thoughtfully creating an estate plan that includes both probate and non-probate assets, you can achieve your wishes for asset distribution, minimize costs, and provide meaningful support for your beneficiaries.
Why Probate Occurs Even With a Will
Even when a valid will exists, probate is still generally required for assets solely in the decedent’s name and not otherwise transferred by non-probate methods. The probate process ensures the proper distribution and transfer of a person’s assets according to the will. For example:
- real property titled only in the decedent’s name;
- bank accounts without payable-on-death (POD) or transfer-on-death (TOD) designations;
- life insurance where the estate is the beneficiary;
- personal property items that must be distributed under the estate.
The court must validate the will, appoint the PR, and supervise distribution of assets in adherence to the will and Colorado law. The existence of a will does not automatically bypass that oversight.
Why a Will Does Not Avoid Probate
Understanding that a will does not avoid probate is essential when working with a wills law firm. Here are key reasons:
- A will only takes effect after death. It is inactive until the testator’s passing. Unlike certain deeds or trusts, a will does not automatically transfer ownership upon death without court involvement.
- Assets titled solely in the decedent’s name and without beneficiary designations must pass through probate. The will merely controls distribution, but the probate court must handle the process.
- The court must admit the will, appoint a personal representative, and oversee administration. Even when the will is properly executed, Colorado law imposes statutory processes. Without filing for probate (when required), the estate may stagnate or assets may not transfer properly.
- A will does not cover assets that pass outside the will by design or contract. For example, jointly held property with right of survivorship, POD/TOD accounts, or assets held in trust are not governed by the will and may already avoid probate—but the will itself governs only probate assets.
- Timing and procedural requirements. For instance, a will must often be lodged with the court within statutory timeframes. If these steps are not observed, issues arise.
- Probate may still be required in Colorado even if the estate is small or assets are limited. The mere existence of a will does not create a blanket exemption from court appointment processes.
In short, having a will is a vital part of your estate plan, but it does not function like a transfer vehicle that bypasses probate on its own. While a will can accomplish the important task of directing how your probate assets are distributed, it cannot accomplish the goal of avoiding probate entirely. If your goal is to avoid or reduce probate involvement, additional planning tools beyond a simple will are generally required.
Why a Trust Avoids Probate
Think of trusts as an entity (which they are!). Just like a business or a person, they can own/hold property in their own name. When you hold your property in a trust, there is no “death” when you pass away as far as the assets are concerned. The trust then distributes your property in the way you directed it to in your trust documents.
Practical Estate Planning Implications for Colorado Residents
When you engage a wills attorney in Colorado, such as Anzen Legal Group, it is important to recognize how this information applies to your situation:
- We can review all assets to determine how title, beneficiary designations, joint ownership, or trust structures may impact whether they pass through probate or by other means.
- If probate is likely, our dedicated will lawyers, ensure the will is executed correctly, located promptly after death, and the personal representative is adequately informed and empowered to act.
- If your objective is to reduce or bypass probate, consider transfer-on-death deeds for real property, POD/TOD designations for financial accounts, and revocable or irrevocable trusts as appropriate.
- We help individuals plan for the future to protect your assets, provide peace of mind, and secure your legacy for loved ones.
- We also assist in planning for situations where you may be unable to make decisions for yourself due to incapacity, ensuring proper estate management and care arrangements are in place.
- As will lawyers with decades of experience, we recommend regularly reviewing and updating your will and overall estate plan as circumstances change (marriage, divorce, children, relocation, major assets) so that you avoid unintended consequences under Colorado law.
- Ensure your personal representative knows where your original will is stored and has access instructions.
- Recognize that probate may still be necessary; we can help plan to minimize or streamline it, but eliminating it entirely tends to require consistent and detailed planning strategies, not just a simple will.
By partnering with a trusted Colorado wills attorney, you ensure that your will is aligned with your objectives and integrated into a broader estate plan that reflects how you hold title, designate beneficiaries, and anticipate transitions. Comprehensive planning can give you a sense of security and clarity during challenging times.
Frequently Asked Questions (FAQ)
If I have a will, do I still have to go through probate in Colorado?
Yes. Holding a valid will means you have expressed your wishes for distribution, but under Colorado law the probate court must usually admit the will, appoint a personal representative, and supervise the estate unless all assets have non-probate transfer mechanisms or the estate qualifies for a simpler process.
What can I do in Colorado to avoid probate altogether?
While avoiding probate completely is challenging, you can significantly reduce court involvement by using strategies such as transfer-on-death deeds for real property, payable-on-death or transfer-on-death designations for financial accounts, joint ownership with right of survivorship, gifting during lifetime, and establishing trusts which hold assets outside the probate estate.
Does the size of my estate determine whether probate is required?
Yes, to a degree. Estates valued at less than certain thresholds and without real property may qualify for small-estate procedures. However, the existence of a will alone does not guarantee avoidance of probate if assets are titled solely in the decedent’s name without beneficiary designations.
How do I execute a valid will in Colorado?
The will must be in writing, signed by the testator (or at the testator’s direction in their conscious presence) and either signed by at least two witnesses or acknowledged by the testator before a notary public. A holographic will may be valid if signed and the material portions are in the testator’s handwriting.
Can a will be contested in Colorado?
Yes. A will may be challenged on grounds such as lack of testamentary capacity, undue influence, fraud, or improper execution. Even if executed, a contested will may result in formal probate proceedings. The statute provides that a will not executed in compliance may nevertheless be admitted under C.R.S. § 15-11-503 if clear and convincing evidence supports the testator’s intent.
What happens if I die without a will in Colorado?
If there is no valid will, Colorado’s intestacy laws govern how your estate is distributed. These statutes assign heirs and set priorities rather than respecting your individual wishes. A will prepared by a competent wills attorney ensures you control your asset distribution instead of relying on default law.
How often should my will or estate plan be reviewed or updated?
You should review your will and estate plan every 3-5 years and when significant life events occur—marriage, divorce, birth or adoption of children, major asset acquisitions, relocation to another state, or changes in tax or probate law. Regular review helps ensure that your will continues to reflect your wishes and avoids unintended probate or distribution complications.
How can lawyers help with estate planning, probate, and will drafting?
Lawyers provide essential guidance in estate planning, probate, and will drafting by ensuring all legal documents are properly prepared and executed. They help clients meet legal requirements, minimize potential disputes, and offer representation throughout the probate process.
What should business owners consider when including their business in an estate plan?
Business owners should work with lawyers experienced in business law to address succession planning, protect business assets, and ensure a smooth transition. Proper estate planning for a business involves legal strategies that comply with business law and help achieve both personal and business goals.
Schedule A Consultation With An Experienced Will Lawyer.
At Anzen Legal Group, we understand that your estate planning needs extend beyond simply drafting a will. A will is an essential tool, and our wills law firm serves Colorado families by helping them execute valid wills, understand the probate process, and integrate wills into comprehensive plans that anticipate and mitigate probate concerns. If you are ready to discuss your estate planning attorney needs, whether drafting or updating a will, devising strategies to reduce probate exposure, or choosing a personal representative, we invite you to contact our Colorado team.
Call us today to schedule a consultation to put your estate plan in order and provide the peace of mind your family deserves. The right time to act is now.
This blog post is for informational purposes only and does not constitute legal advice or establish an attorney-client relationship. Please consult a qualified wills attorney in Colorado for guidance tailored to your situation.
