What Happens When Someone Dies Without a Will?

A will is the roadmap that directs what happens to someone’s probate assets when they die.  The will also nominates a personal representative to administer the estate.  But what happens when someone dies “intestate,” or without a will?  In those situations, the Colorado Probate Code directs who inherits from the estate and who has priority to administer the estate.  Oftentimes, these default provisions may not be what someone would choose for themselves if they had created a will.

Who Inherits the Estate?

The following tables describe who inherits an intestate estate in Colorado (“D” = Deceased party):

(Click on Images to Enlarge)

The statutory definition of “Per capita at each generation” is as follows: the estate is divided up into as many equal shares as there are: “(i) surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants, and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share.  The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who are allocated a share and their surviving descendants had predeceased the decedent.”

The best way to understand all this legalese is with an illustration of what would happen to a Grandparent’s intestate estate if they were not married at their time of death and were not survived by the other parent of their children:

 

Another way to think of “Per capita at each generation” is “equally near, equally dear.”  Each surviving child would receive as much as any other surviving child.  And each surviving grandchild whose parent is deceased would receive the same as any other surviving grandchildren with a deceased parent.

Who Administers the Estate?

Where no will exists, the surviving spouse has priority to serve as personal representative.  If there is no surviving spouse, then all surviving heirs have equal priority to serve.

Personal representatives in the State of Colorado must be at least 21 years old.  If an heir is at least 18 years old, but not yet 21, they may nominate someone to serve as personal representative in their place.

If multiple individuals have the same level of priority to serve as personal representative under the law, they must all agree as to who will serve as personal representative.  If they cannot agree, the court will hold a hearing to determine who should administer the estate.

If an estate administration is not opened within 45 days of the decedent’s death, then a creditor may file to open probate.

Conclusion

The Colorado Probate Code lays the framework to determine what happens when someone dies without a will.  But in many cases, the default laws are not how someone would choose for their estate to be distributed or administered – which is the exact reason to have a will.  Where a will directs disposition of assets and nominates fiduciaries, the will takes precedence over the default terms outlined in the Probate Code.   This article did not address who has priority to serve as guardian for minor children, which is another important reason to have a will.

Contact me to review your existing will or to prepare new wills and related documents for you and your family.

Mike Smeenk is an attorney in the law firm of Frascona, Joiner, Goodman and Greenstein, P.C., a Colorado law firm. His practice areas includeEstate Planning, Trust and Estate Administration, Real Estate, and Corporations. Contact Mike Smeenk.

Disclaimer — Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.

MICHAEL A. SMEENK