Disclaimer: This article is for informational purposes and does not constitute legal advice. Consult a licensed Colorado attorney for advice specific to your situation.
Detailed Answer
How Real Property Can Pass Outside Probate in Colorado
Under Colorado law, certain ownership arrangements or instruments allow real property to transfer automatically at death, avoiding probate. Common methods include:
- Joint Tenancy with Right of Survivorship: When two or more people own property as joint tenants, the surviving owner automatically inherits the decedent’s share at death. See C.R.S. § 38-30-401 (Colorado’s joint tenancy statute).
- Transfer-on-Death Deed: Authorized by the Uniform Real Property Transfer on Death Act. A valid beneficiary deed recorded before death directs property to a named beneficiary, bypassing probate. See C.R.S. § 15-15-101 et seq. (§ 15-15-101).
- Revocable Living Trust: Property titled in the name of a revocable trust passes to trust beneficiaries upon the settlor’s death without probate, provided the title remains in the trust’s name.
When Probate Is Required for a Will
If the decedent owned real property solely in their name and did not use a probate-avoidance instrument, the will must be admitted to probate before title can transfer. Probate is the court-supervised process that:
- Authenticates the decedent’s will (C.R.S. § 15-10-201).
- Appoints a personal representative.
- Inventory and values estate assets.
- Pays valid debts and taxes.
- Distributes remaining assets to heirs or devisees under the will (C.R.S. § 15-11-101).
Even if only real estate requires distribution, Colorado law typically mandates probate for any sole-owned real property unless its value falls under the small estate threshold. Small estate procedures may allow a simplified process for estates under $70,000 (excluding homestead and exempt property). See C.R.S. § 15-12-101.
Key Differences
| Method | Probate? | Statute |
|---|---|---|
| Joint Tenancy | No | C.R.S. § 38-30-401 |
| Transfer-on-Death Deed | No | C.R.S. § 15-15-101 et seq. |
| Will Alone (sole ownership) | Yes | C.R.S. § 15-10-201; § 15-11-101 |
Helpful Hints
- Review the title of your property: joint tenancy or beneficiary deed avoids probate for that asset.
- Record a transfer-on-death deed properly: it must be signed, notarized, and recorded before death.
- Consider a revocable living trust if you own multiple assets and want to avoid probate altogether.
- Consult Colorado’s small estate affidavit if your entire estate is under the statutory threshold.
- Keep beneficiary designations current on retirement accounts and life insurance to bypass probate for those assets.
Understanding these options helps you decide when probate is necessary and when you can plan to avoid it.