Jim Flynn

Jim Flynn, Money & the Law

“Probate” is one of those legal terms, like “deposition” or “subpoena” or “warrant,” that is regularly used but not always fully understood, even by lawyers. The term comes from a Latin word meaning “to prove” and refers specifically to the process of proving the validity of a will. In common use, however, it has a broader meaning and refers to the entire process by which an estate is administered.

The complexity of the probate process will vary with the circumstances. But, in general: When someone dies, the law requires the person in possession of the decedent’s will to deposit the will with the court handling probate matters in the county where the decedent was living. The law says this is to happen within 10 days of death, although being late with a library book is likely to result in harsher punishment.

The next step is the commencement of a “probate action.” Usually, the person named in the will as personal representative will, with the help of a lawyer, file the probate action. The first events in the probate action do, in fact, relate to “proving” validity of the will — that it is the last will of the decedent and was executed while the decedent knew what he or she was doing, and without duress or undue influence. To obtain a declaration of validity, a petition is submitted to the court. Notice of the petition is given to those named in the will to get property and to heirs who would inherit if there hadn’t been a will.

In the great majority of cases, the validity of a will is not contested and the court moves quickly and informally to declare the will valid and appoint a personal representative. Once in a while, however, there is a challenge to the will and the probate action then turns into a formal lawsuit.

After a will is declared valid and a personal representative is appointed, that person starts rounding up the decedent’s assets. When the assets have been identified and collected, the representative files an inventory with the court, with copies to “interested parties.” The representative will also hire a professional to prepare income and estate tax returns and work to resolve creditor’s claims.

The law requires creditors to move quickly. Once a notice to file claims is published in a local newspaper, creditors may have only a few months to submit claims. If a claim is disputed, the court is standing by to resolve the dispute.

Certain distributions can be made out of an estate early; for example, to a surviving spouse who needs to pay bills. Distributions to those who are to receive something under the will usually come after creditors’ claims have been paid.

When the probate process is completed, the representative notifies the court that his or her job is done and asks to be discharged. In the majority of cases, the probate process will be over within a year.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright. You can contact him at moneylaw@jtflynn.com.

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