When someone dies in Colorado, the executor named in his will or a person appointed by the court begins the probate process. The executor gives notice to the decedent's beneficiaries -- or his heirs if he did not have a will -- and pays off any final debts. The remaining probate property is then distributed to the beneficiaries he named in his will or to others as determined by state law.
Probate property is property the decedent owned in his own name at the time of his death, according to the Law Office of Larry A. Henning, P.C. This excludes property that was owned with a right of survivorship and transferred to the other owner at death, accounts that designate a beneficiary upon the account owner's death, property held in trust and accounts with payable-on-death designations.
If the decedent has no will, the amount of the probate estate the surviving spouse receives depends on which other family members are still alive. If the decedent had no parents or descendants, such as children, grandchildren or great-grandchildren, the spouse receives the entire estate. Otherwise, the surviving spouse's share is as follows:
- If the decedent only had children with the surviving spouse and the surviving spouse has no other surviving children, the surviving spouse inherits the entire estate.
- If the decedent had children with the surviving spouse but the surviving spouse has other surviving children who are not the decedent's offspring, the surviving spouse receives the first $150,000 of the estate and half of the remaining balance. The other half goes to the decedent's surviving children.
- If the decedent has children who are not the children of the surviving spouse, the surviving spouse inherits the first $100,000 and half of the remaining balance, and the surviving children of the decedent receive the other half of the balance.
- If there are surviving parents but no descendants, the spouse receives the first $200,000 and three-fourths of the remaining balance. The decedent's parents receive the other fourth of the remaining balance.
If there is a will, the spouse can choose to take what was left to her, or she can claim the elective share permitted under state law. Colorado estate planning lawyer Kimberly Willoughby explains that the elective share provides a larger portion of the estate to the surviving spouse the longer the two were married.
When determining the amount that an heir receives, all debtor's claims and a reasonable allowance for support are first deducted from the probate estate.
Children can be disinherited according to Colorado law. However, the Colorado firm of Althaus Law explains that the state laws of intestacy give children who were born after the will was written the right to receive a share of the estate. Therefore, if a parent wants to specifically disinherit a child, he should clearly spell this out in the will.
According to Colorado's intestacy laws, the amount that a child receives if a will doesn't exist is based on whether the decedent was married and how many children there are. If there is no surviving spouse, the children inherit the entire estate. If the surviving spouse was the children's mother but had children outside the marriage, the children receive the other half of the remaining estate, less the first $150,000. If the surviving spouse was not the children's parent, the children receive half of the remaining estate, less the first $100,000.
If a child predeceases the decedent, his share is split evenly between his children. Take the following example: Adam had four children, Beverly, Chris, David and Eli. Eli died after having two children, Frank and Gertrude. Beverly, Chris and David would each have a one-fourth share of the estate. Frank and Gertrude would split their father's one-fourth share, so they would have one-eighth of a share each.
If there is no surviving spouse and no surviving descendant, other heirs stand to inherit based on how closely they are related to the decedent. The next priority goes to the decedent's parents and then his siblings. If none of these relatives are living, nieces and nephews inherit. Grandparents are next in line, followed by aunts and uncles.