What is probate, and how do I avoid it?

Mar 15, 2024

Estate Protections Series: Part 3

Most of us hear the horror stories of “probate," but often do not understand what it is or how to avoid it. Probate, simply, is an area of law. It governs a person's affairs and happens when a person becomes incapacitated or dies. 


Incapacity + Probate

Take, for example, an elderly parent who suffers from Alzheimer’s Disease. Somebody needs to be able to care for this parent, but nobody can take over by default. A bank will not let you walk in and take money out of someone else's account. The only solutions are (1) a court order, or (2) a Power of Attorney. If this happens and there is no POA, the next person to help must be appointed by a probate judge. This happens with a “Conservatorship” (financial decisions) and/or a “Guardianship” (medical decisions). 


How do I avoid this? Create Powers of Attorney and Medical Directives! These documents appoint your best people to assist you when you need it. They also instruct financial institutions and medical providers about what to do for you. POAs and Medical Directives exist your entire lifetime, work everywhere, and you can update them as much as needed.


Death + Probate

Let’s assume instead that the parent has died and left behind a house, bank account, etc. in their name. If any of those titles were only in their name, nobody can manage the assets. Titles become stuck in someone's name, and we use probate to "un-stick" them. In probate, the court appoints a “Personal Representative” (Executor) to take possession of the property and distribute it. This can happen either under the terms of a Will or the default laws for inheritance ("intestacy").


How do I avoid this? Create an estate plan! There are multiple ways to set up an estate plan. You might structure “beneficiary designations” on all your assets to transfer quickly after death. Or you might set up one or multiple trusts to hold and manage assets after you die. How you plan depends on your goals, your concerns, and your assets, but remember you have options!


What does this mean for my loved ones?

In Colorado, the cost of probate varies, but can reach thousands of dollars after little time. These costs are on top of time, effort, and court appearances. Most important, probate also opens the door to conflict. If a person becomes incapacitated or passes away without a plan, family members can fight. Disputes happen about who should make decisions, how to divide inheritance, and other issues. But if probate never happens, these disputes are avoidable. Do not become a horror story!


Probate always seems scary, for good reason, but you can avoid it. The attorneys at Opfer | Campbell | Beck P.C. are here to provide you a NO-COST, NO-OBLIGATION estate planning consultation. Our office will provide you education, resources, and a plan of action. For more information, contact our office today!

By Brittany J. Shultz 19 Apr, 2024
How do you know where to file your family law case?
By Brandon Campbell 08 Apr, 2024
The death, disability, or other loss of a loved one is a difficult time for anyone, but none more than a minor child. While the adults are scrambling to pick up the pieces, they might forget there is a child left behind. And that child is experiencing more difficulty than anyone else may know or see. As a result, it is critical to attend to the child’s needs, which likely means pursuing a legal guardianship. What Is Guardianship? Guardianship is a probate action that happens in the county where the child resides. Any adult can petition the local probate court for appointment. That person (1) needs to be interested in the welfare of the child, and (2) must believe they are best-suited to serve. However, if there is a signed guardian nomination, it gives the applicant first priority to serve. Nominations happen in Last Wills or by a separate guardian nomination form. If the child is age 12 or older, they must receive notice of the petition and also have a say in the outcome. Even though a judge will decide guardianship, an older child can tell the court their preferences and why. After filing, there are several steps to the case, including hearings. A probate court must find that the applicant’s appointment is in the best interests of the child. If not, the court will look to another option. After the guardian's appointment, they will file a "care plan" with the court. This covers important plans about where the child will live and how they will receive care. Every year afterwards the guardian will file a report that updates the court about the child. And finally, when the child turns 18, the guardianship terminates. It is possible to appoint two guardians. It is also possible for guardians to live in another state when they make the request. If needed, a surviving child can relocate to live with guardians in another state. What should I do next? The initial pleadings and reports, as well as the hearings and evidence for appointment, can quickly overwhelm anyone. If you wish to become a guardian, you need a complete understanding of the process. The attorneys at Opfer | Campbell P.C. handle guardianships every day, and are here to provide you that assistance. If you have questions or need to begin a case, call us today for a consultation.
By Ashleigh Beck 26 Mar, 2024
When consulting a family law attorney, what questions should you be asking?
By Brittany J. Shultz 04 Mar, 2024
What exactly is an annulment?
By Brandon Campbell 16 Feb, 2024
Estate Protections Series: Part 2
By Ashleigh Beck 12 Feb, 2024
Building a Stronger Future Together
By Brandon Campbell 08 Feb, 2024
Current Guidelines for Business Entities
By Brittany J. Shultz 25 Jan, 2024
What should you consider before retaining counsel?
By Brandon Campbell 09 Jan, 2024
Estate Protections Series: Part 1
By Brandon Campbell 28 Dec, 2023
Regardless of whether you ever complete estate planning, it is so important to identify your wishes about “last remains,” meaning what to do with our body after we pass away. Historically, our options were limited, but today you will find there are countless choices available. Whether your motivation is religion, the environment, or cost, there is an option for everyone! Below is a general explanation of the biggest categories, but new ones are still emerging. The Traditional Paths: Burial & Cremation What everyone knows already, burial involves the physical “interment” of our body, whether that means being buried in the ground or entombed in a mausoleum. Burial is usually the most expensive option, by far, so you want to ensure there is sufficient money to cover these costs when you pass away. As planners, we strongly recommend clients obtain “pre-need insurance” that covers these costs when you pass away. The main alternative to burial, cremation involves the disposal of a body by turning it into ashes. Cremation tends to cost much less than burial, and the “cremains” can either go to family / heirs or can be interred at a cemetery. Although cremation tends to cost much less than burial, we still recommend clients consider “pre-need” policies to pay these costs when you pass away. Body Donation If you would like your body to continue having uses after you pass away, a great option to consider is body donation. In Colorado, whole-body donations are governed by the Colorado State Anatomical Board, and this allows you to leave your body to various institutions (such as universities) for the purpose of scientific research. Importantly, you cannot simply designate body donation in a Will – you must register and qualify to donate your body after you pass away. Additionally, institutions have different rules, and there are potential costs associated with donation, so before you make any commitments, we recommend you have an attorney review the donation agreement. For more information: https://medschool.cuanschutz.edu/state-anatomical-board/faqs “Green” Burial & Body Composting “Green Burial” is an emerging option and can involve several different choices. At its core, this choice is “green” because the burial omits traditional steps such as embalming, and uses biodegradable caskets instead of wood or metal. Additionally, Colorado has numerous “botanical cemeteries,” which upends the traditional model of a cemetery in favor of a beautiful outdoor space. All of these different options allow you to receive a burial, but in a much more eco-conscious way. In lieu of a formal burial, but without a cremation, one choice available is body composting (a/k/a “Terramation” and “Natural Reduction”). In this process, our body is converted by microbes into soil, which is then returned to the earth. This process takes much longer than any others, typically 4-6 months, but is likely the most ecologically sound. Eco-Friendly Disposition of Cremains If you choose to receive cremation after death, but do not want to remain in an urn forever, there are numerous options for those cremains. New advancements allow us to convert our cremains into many forms, such as turning them into jewels, becoming painted into artwork, or even being tattooed onto a loved one. If we want to spread our ashes into the world, several state and federal regulations (including the EPA) limit our options. However, many eco-friendly choices are developing. For example, many people opt for “bio urns,” which are biodegradable urns planted in the ground, usually with seeds for a plant / tree. Then when the urn degrades, our ashes fertilize the seeds and our legacy lives on with nature. Alkaline Hydrolysis (a/k/a Aquamation) The last option, and one that is not available in many states, Aquamation is the alternative to cremation that does not involve fire. Instead, our body is placed in an alkalized water solution, which breaks us down into our most base components. Aquamation uses substantially less energy than traditional cremation and does not release harmful toxins into the air. Similar to body composting, Aquamation is the most eco-friendly method for disposition. Regardless of your preferences, please know there are many options available, but the most important thing is to tell your loved ones your wishes. One of the tools we provide, which you can find here , is a Memorial Services Memorandum that allows you to write down anything your loved ones need to know. If you work with our office, we will hold these records for you indefinitely and will provide them when needed. If you would like to speak with our offices about Estate Planning, please call us or submit an intake form through our website and our staff will be happy to assist you.
More Posts
Share by: