If you don’t have a will, don’t fret. The Colorado state government has made an estate plan for you! When you die without a will, you are said to die “intestate.” The intestacy statutes can be found in the Colorado Revised Statutes. These statutes determine who is entitled to receive your property and in what amount.
Some individuals assume that if they die, their surviving spouse is entitled to receive all of their estate. You might be surprised to discover that the surviving spouse is not always entitled to receive all of a deceased spouse’s estate. The intestacy statutes state that a surviving spouse may receive:
1. The entire intestate estate if no descendant or parent of the decedent (the deceased spouse) survives; or all of the decedent’s surviving descendants are those of the surviving spouse as well, and the surviving spouse does not have any other descendant
2. The first three hundred thousand dollars, plus ¾ of any balance of the intestate estate if no descendant of the decedent survives, but a parent of the decedent survives
3. The first two hundred twenty-five thousand dollars, plus ½ of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more of his/her own surviving descendants
4. The first one hundred fifty thousand dollars, plus ½ of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse
Alternatively, if the decedent did not have a surviving spouse, the decedent’s property will be distributed to persons in the following order:
1. To the decedent’s descendants
2. To the decedent’s parents
3. To the descendants of the decedent’s parents
4. To the decedent’s grandparents or their descendants
5. To the decedent’s other living relatives
6. To the state of Colorado
In addition to the intestacy statutes determining your beneficiaries, these statutes also determine who will serve as the personal representative (also known as the executor) of your estate. This person is responsible for filing court documents, paying your debts, and distributing your assets to your beneficiaries. The persons who have priority to serve, listed in order, are the following:
1. A person nominated in a will
2. The surviving spouse who is a devisee (beneficiary named in a will) of the decedent
3. Other devisees of the decedent
4. The surviving spouse
5. Other heirs of the decedent
6. Any creditor of the decedent
For some, the order of persons entitled to inherit and serve as personal representative might be acceptable, while to others, it might be less than ideal. In deciding whether an estate plan is necessary to avoid intestacy, it is important to consider your relationship with the persons who would fill these roles. Do you get along? Do you want that person to receive the stated portion of your assets? Is that person responsible enough to handle being the personal representative of your estate? Do you have charitable intentions? You will notice that the intestacy statutes do not have a provision for a charitable donation.
While you might not be concerned about how your estate will be administered after your death, it is important to keep in mind that your loved ones, who are dealing with the grief of your loss, might appreciate the guidance that an estate plan provides. Having an estate plan can prevent family quarrels and provide peace to your family and friends in knowing that your estate will be distributed according to your wishes. Additionally, creating an estate plan can save time and expense during the probate process. Without an estate plan, the court must identify and locate the person who has priority to serve as your personal representative as well as your beneficiaries, which can be a very long and expensive process.
To learn more, contact our attorneys.
References: C.R.S. §§ 15-11-102, 15-11-103, 15-11-105, 15-12-203