Frequently Asked Questions

Probate Litigation FAQs

After a person dies, probate is the legal process a decedent’s estate goes through.  One of the first issues that will be addressed is whether the decedent left a valid will or other testamentary instrument.  Other issues addressed through the probate processinclude:

  • Establishin court whether the decedent left a valid will or other testamentary instrument.
  • Appoint a personal representative or executor to administer the decedent’s estate.
  • Identify and notify beneficiaries or heirs of the decedent’s estate and other interested parties.
  • Identify and inventory the decedent’s property.
  • Determine what assets are, and are not, property of the decedent’s estate.
  • Appraise estate property and prepare an estate accounting.
  • Pay creditor claims and taxes.
  • Distribute estate property in accordance with the terms of the decedent’s will, or in accordance with state law if the decedent did not leave a valid will.
  • Close the estate.

Probate proceedings are governed by state law.  The Colorado Probate Code provides the following definitions applicable to probate, trust and estate cases in Colorado:

  • “Beneficiary” includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer; as it relates to a charitable trust, includes any person entitled to enforce the trust; as it relates to a “beneficiary of a beneficiary designation”, includes a beneficiary of an insurance or annuity policy, of an account with payment on death (POD) designation, of a security registered in beneficiary form (TOD), or of a pension, profit sharing, retirement, or similar benefit plan, or other nonprobate transfer at death; and, as it relates to a “beneficiary designated in a governing instrument”, includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee, or taker in default of a power of appointment, and a person in whose favor a power of attorney or a power held in any individual, fiduciary, or representative capacity is exercised.
  • “Conservator” means a person who is appointed by a court to manage the estate of a protected person.
  • “Devisee” means a person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee in trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
  • “Disability” means cause for a protective order as described in section 15-14-401.
  • “Distributee” means any person who has received property of a decedent from his or her personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his or her hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purposes of this provision, “testamentary trustee” includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
  • “Estate” means the property of the decedent, trust, or other person whose affairs are subject to this code as originally constituted and as it exists from time to time during administration.
  • “Fiduciary” includes a personal representative, guardian, conservator, and trustee.
  • “Guardian” means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem.
  • “Heirs” means persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
  • “Incapacitated person” means an individual described in section 15-14-102 (5).
  • “Interested person” includes heirs, devisees, children, spouses, creditors, beneficiaries, trust directors, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person, which may be affected by the proceeding. It also includes persons having priority for an appointment as a personal representative and other fiduciariesrepresenting the interested person. The meaning as it relates to particular persons may vary from time to time and is determined according to the particular purposes of, and matter involved in, any proceeding.
  • “Letters” includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.
  • “Personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. “General personal representative” excludes special administrator.
  • “Testacy proceeding” means a proceeding to establish a will or determine intestacy.
  • “Trust” includes an express trust, private or charitable, with additions thereto, wherever and however created and any amendments to such trusts, and also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. “Trust” excludes constructive trusts unless a court, in determining such a trust, provides that the trust is to be administered as an express trust and also excludes resulting trusts; conservatorships; personal representatives; accounts as defined in section 15-15-201 (1); custodial arrangements pursuant to the “Colorado Uniform Transfers to Minors Act”, article 50 of title 11, C.R.S.; security arrangements; business trusts, as defined in subsection (6.5) of this section; and any arrangement under which a person is nominee or escrowee for another.
  • “Trustee” includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.
  • “Ward” means an individual described in section 15-14-102 (15).
  • “Will” includes any codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession. “Will” does not include a designated beneficiary agreement.

The personal representative has many duties, rights, and responsibilities, including the ability to open and maintain an estate bank account; to sell, transfer, or encumber real property; to sell and/or transfer assets; to consolidate bank accounts; and to deal with creditors.  The personal representative owes a fiduciary duty to the estate, devisees, heirs, and other interested parties, including creditors, which includes the specific duties:

  1. To act impartial in regards to all parties to the estate.
  1. To administer the estate with care and prudence.
  1. To put the interests of the estate in front of the personal representative’s own interests.
  1. To be loyal and treat each party the same.

The personal representative is also responsible for creating an estate inventory of all of the decedent’s real and personal property. The personal representative must marshal and manage the estate assets until the court approves the closing of the estate, keepaccurate records of the estate’s transactions, and make distributions to creditors, devisees, and/or heirs.

The personal representative is entitled to reasonable compensation for her/his services, and whether or not she/he elects to take a fee, the personal representative should keep track of the time she/he spends working on the administration of the estate.

Probate litigation, also known as trust and estate litigation, is the legal process one undertakes to contest the validity of a will or trust, to obtain an inheritance, to contest or seek reformation of a trust, to obtain redress for fiduciary wrongdoing, or to recover estate or trust property. The commencement of trust and estate litigation disrupts, or at least delays, completion of the probate process.

The short answer is money and emotion.  Probate and trust disputes often involve large amounts of money or significant assets, and at the same time involve extreme emotionsthat are a natural consequence following the death or disability of a loved one.  Common reasons for trust and estate disputes include:

  1. Challenge to the validity of a will or trust. An interested party can bring a legal action, called a “will contest” or a “trust contest,” to challenge the validity of a will or trust when that party believes that the will or trust is improper or invalid because of lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.  These claims are especially common when a person changes his estate plans shortly before he dies or becomes disabled.
  1. Named fiduciary does not want to serve. When the person named as personal representative in the decedent’s will, or named as the trustee of decedent’s trust, does not want to serve in that capacity, a legal action may be brought to have a personal representative or trustee appointed.
  1. Disinheritance. Disinheritance occurs when a person whom should otherwise receive an inheritance is left nothing from a loved one’s estate or trust.  A person does not need any specific reason to disinherit another person, and can choose to legally disinherit anyone they like, including a child, parent, spouse, or family member.
  1. Infighting or disagreement amongst heirs or beneficiaries. It is common for heirs or beneficiaries to have differing interests and entitlements as compared to other heirs and beneficiaries, which causes the interested parties to disagree about how best to administer the estate or trust.  These disagreements often relate to items of personal property, such as the family china and silverware or mom’s diamond ring, and result in probate litigation to have these issues decided in court.
  1. Disputes about what assets are, and are not, property of the estate. Certain assets are considered “non-probate” assets and do not have to go through the probate process to be distributed.  These non-probate assets are not part of the decedent’s estate, and typically include real property held in joint tenancy, life insurance proceeds, retirement and pension plans, joint bank accounts, and accounts with a beneficiary or “pay on death” designation.  Disputes over whether assets are, or are not, property of the estate are common.
  1. Valuation disputes. When a family member or friends dies, it is common for property of the decedent to hold sentimental value.  This sentimental value, however, does not always translate into fair market value.  Disputes over the valuation of estate property effect the ultimate value of the estate, and the amount of the distributions to devisees and beneficiaries, as well as the estate’s tax obligations.
  1. Estate assets located in multiple states. State law governs real property located in that state.  Thus, if the decedent’s estate owns property in multiple states, then there may have to be multiple probate actions opened in various states.  For instance, if the decedent lived in Colorado and owned real property in Colorado and in Arizona, then the main probate case would be opened in Colorado and an ancillary probate proceeding would be opened in Arizona.
  1. Fiduciary impropriety or imprudence.As fiduciaries, both a personal representativesand trustees owe a broad range of duties under Colorado law. In addition to duties of loyalty and impartiality to beneficiaries and the estate, fiduciaries also owe a duty to administer the estate or trust with “care and prudence.”  When investing estate assets, fiduciaries “shall exercise the judgment and care, under the circumstances then prevailing, which men of prudence, discretion, and intelligence exercise in the management of the property of another.”  When a party feels that a fiduciary is not fulfilling his duties or is making imprudent investments, then legal action against the fiduciary is a likely consequence.
  1. Unfair distribution. When a party’s inheritance is less than what the party believed she/he would receive, or when a party does not receive specific estate property that she/he believes to be entitled to, the aggrieved party will often bring legal claims against the fiduciary and other beneficiaries.

If you are a beneficiary or a fiduciary of an estate or trust, and any disagreement arises relating to the administration of the estate, the management of the trust, or your right to receive and inheritance or distribution, then you likely will benefit from hiring a probate litigation attorney.  The Denver probate litigation attorneys at Reynolds Gillette LLC are familiar with the Colorado Rules for Probate Procedure, the Colorado Probate Code, and the Colorado Uniform Trust Code.  Our probate litigation attorneys have handled a wide variety of trust and estate disputes, and have the courtroom experience to win these disputes at trial for our clients.  A probate litigation attorney can protect your interests, your inheritance, and your legacy.

Reynolds Gillette LLC

Reynolds Gillette LLC