Dying Without A Will
By Tamra K. Waltemath, P.C. ~
If someone dies without a Will, his or her assets will be devised pursuant to the laws of the state in which the decedent was domiciled at death. If real estate was owned by the decedent, and it is not located in the state where the decedent was domiciled at death, an additional proceeding will be required in the state where the real estate is located, to transfer that property. Real estate is governed by the laws of the state in which it is located. So, if you die without a Will in Colorado, the laws of the state of Colorado determine who is entitled to your assets, and if you own real estate outside of Colorado, additional proceedings will be necessary.
In Colorado, at your death, your entire estate passes to your spouse:
- If you are married and have no surviving descendants (children, grandchildren etc.) and no surviving parents.
- If you have children, all of whom are also children of the surviving spouse, and the surviving spouse has no other surviving descendants.
If you are married but either you or your spouse has children that are outside the marriage, the surviving spouse is not entitled to the entire estate of the deceased spouse. For example, if you are married and all your children are children of the surviving spouse and the surviving spouse has one or more children who are not your children, the surviving spouse is entitled to the first $225,000.00 plus one-half of the balance of the estate; the other ½ of the estate passes equally to your children. If you are married and one or more of your surviving children are not children of the surviving spouse, the surviving spouse is entitled to the first $150,000.00 plus one-half of the balance of the estate; the other ½ of the estate passes equally to your children. Therefore, if you own a home, it may not pass to your surviving spouse if it is worth more than $300,000.00 and not in joint tenancy. if you are married, have no children, but a parent survives, your spouse is entitled to the first $300,000 plus ¾ of the balance of the estate; ¼ passes equally to your parents or the survivor. (“Children” has been used in the examples instead of “descendants” to make the examples easier to read, but the law applies to descendants).
In addition, the surviving spouse and or dependent children are entitled to a certain amount of property over and above everyone else, including creditors. This entitlement is called a family allowance and or an exempt property allowance. A family allowance is a reasonable amount of money necessary to maintain the family during the administration of the estate. An exempt property allowance allows the surviving spouse and or dependent children to keep a certain amount of personal property (household goods and personal effects) and cash. The exempt property allowance is approximately $30,000.00 (there is a cost of living adjustment done annually).
If there is no surviving spouse, the estate passes to the decedent’s descendants per capita at each generation. If there are no surviving descendants, the estate passes to the decedent’s surviving parents equally or to the survivor. If there are no surviving descendants or parents the estate will pass to the descendants of the decedent’s parents (i.e. the decedent’s siblings) or either of them per capita at each generation. The formula continues until heirs are found. The problem usually becomes, who is going to search for these heirs? If you do not have a will, you have not named anyone to be in charge of this discovery process. Anyone can petition the court to ask to be in charge of your estate, including creditors, but no one is required to do so.
Oftentimes your estate will escheat to the State of Colorado if no one takes charge.
As you can see, this process can be very complicated and confusing. You can be in control of who is in charge of your estate and who your property passes to if you write a will. Take control. Come and see me to discuss preparation of a will.
This article was written by Tamra K Waltemath of Tamra K. Waltemath, P.C. Material contained in this article is informational in nature and should not be taken as legal advice. For specific questions, you should schedule a consultation with the attorney. Tamra K. Waltemath is an elder law attorney focusing on wills, trusts, estate and trust administration, probate and non-probate transfers, guardianships and conservatorships. She can be contacted at: Tamra K. Waltemath, P.C., 3843 West 73rd Avenue, Westminster, CO 80030; 303-657-0360; or visit her website at: www.WaltemathLawOffice.com. Any inquiry via this website does not form a lawyer-client relationship.