We have prepared this to address the frequently asked questions for your review before you complete your probate paperwork.

The paperwork can be found at bernco.gov/probate-court, and there is paperwork for cases where there is a will and paperwork for cases where there is no will. 

Both sets of paperwork come with detailed instructions, which should be read through in addition to reviewing this video before you complete the paperwork.

Once you have done that, if you still have questions, you can contact our court and probate attorneys by emailing probate@bernco.gov or calling us at 505-468-1229.

As you would expect, we are behind in opening probates due to Covid. We are taking limited in-person appointments. You can continue to mail in the documents with the filing fee, which will be processed in the order received. 

We understand how important the probates are to the basic and necessary tasks, like obtaining access to bank accounts to pay bills. We are doing our best to process the probates as quickly as we can and we appreciate your patience. 

When does a probate have to be opened?

It is not always required when a person dies. It needs to be opened if there are any accounts, deeds, etc., solely in the decedent’s name, and there is not a beneficiary designation naming who will receive the asset. 

  • Less than $50,000

Another thing to consider is that if a decedent has less than $50,000 in assets, not including real estate, there is an alternative to it called an “Affidavit of Small Estate”. 

  • Debts vs. Assets

You need to consider whether there are more debts than assets in the estate.

You have to go through the process of dealing with the creditors of the person who died. You are not personally obligated to pay the person’s debts unless you are a co-signer on the debt or unless it is community debt meaning that you are the spouse of the person who died and this debt was incurred during the marriage.

Who is Allowed to Open a Probate?

It depends on whether the decedent has a will. 

  • With Will

If there is a will, the person named in the will as the executor or personal representative has priority to be appointed as the personal representative. 

However, sometimes the person named in the will is unwilling or able to serve as the personal representative. In that case, it can be the next person named in the will to serve or another person interested in the person’s estate.

  • No Will or Un-named

If the person that opens the administration is not the one named in the will, or if there is no will, then the legal spouse has priority to open the probate and be appointed as the personal representative of the estate.

If the decedent was not married, then the decedent’s adult children have the priority to serve. If there is more than one person with the same priority, the applicant must get the consent of the others with the same priority. 

Those consents need to be attached to the application for probate.

Do I File My Administration in Probate Court or District court?

The court has jurisdiction to open it when there is no conflict among the interested parties.

  • Disputed Probates

Suppose there will be a fight over the appointment of the personal representative, a fight about debts, or the validity of the will. These probates need to be opened in district court as we do not have jurisdiction to deal with these issues.

How do I Know if a Will is Valid?

When you file a probate with a will, you must provide us with the original will.

The court keeps the original will in its permanent records in order to be validly executed. It needs to be signed and dated by the person and witnessed by two others.

Traditionally, the will is notarized, but it does not need to be. A notary can be one of the witnesses. If you do not have the original will, you cannot file the will to be probated in court.

What do I Need to Do to Open a Probate Case?

You can purchase a packet from the court for $5.00 or download the form from Bernco.gov.

Please read through the instructions and fill out the first four documents in the packet, starting with the application. 

Bring the completed documents to the court either by hand, delivering them to the customer service desk in the county building or mailing them to the court along with an original death certificate or other proof of death and a $30.00 filing fee.

Please make sure that you’ve included the filing fee, or we cannot docket your probate.

Please note that our ability to meet in person is not possible due to covid, in order to keep our staff and the public safe. We are available though for phone appointments and available by email.

What can I Do if the Personal Representative isn’t Doing What They are Supposed to be Doing?

Please consult an attorney if there are any problems, we cannot give legal advice.

Is there a Time Limit to Open a Probate?

You have three years to open an administration. If it has been longer than three years, you have to open it in district court if a will needs to be enforced. If there is not a will or the interested party is consent to proceed without the will, the court can do it.

Are the Forms Hard to Fill Out, and Can You Help Me Fill Them Out?

The forms in the packets are written for people who are representing themselves. The instructions are very informative, they are not difficult to fill out. Some issues that regularly occur are the following:

  • Relationship with the Decedent

The probate application asks for your relationship with the decedent. However, it does not provide a line to fill in your relationship. Please place your relationship with the decedent. For example, you are their son, daughter, niece, or nephew right after the first line on the application.

The form asks for a list of a spouse, children, or other family members. Please document if there is a spouse or not. You need to list everyone in the will, including charitable organizations. 

List all children even if a child has died, if a child has died, then you need to note whether that deceased child has children.

  • List Everyone in the Will

In this same list, we ask you to name their relationship with the decedent, as the probate court forms require. For example, spouse, adult son, adult daughter, grandchild, with their age if they are a minor child. If there is a will, we also ask you to state whether the person listed is a devisee — which means the person named as a beneficiary in the will. 

We also need you to identify them as an heir so that if the will is invalid, we know who would inherit pursuant to the statute.

If there is no will, the list needs to identify their relationship to the decedent and identify them as an heir.

  • Personal Representative

If the person applying to be the personal representative does not have priority, have you provided the court with your consents for your appointment from all of the others with equal priority? 

We typically have to follow up to obtain the consent. If you are unable to obtain the consent, then you should not be filing in the probate court — you will need to file in district court.

Probate Package

We regularly have packages dropped off without the filing fee. Please make sure to attach the $30.00 filing fee. We take checks and credit cards.

Probate Application

We need a death certificate or other proof of death. Even though a death certificate has some of the information required in the application, you need to include that information on the application, as the death certificate is not part of it.

The application must contain all the information requested, as we cannot complete the forms for you.  We can’t help anyone fill out forms, but we suggest you consult an attorney if there are any problems.

If you file in district court, you will have to request a hearing from the district court, or your case will not move forward. You may find it necessary to hire a lawyer to help at that point.

Thank You for Your Time

By submitting a complete package, including your $30.00 filing fee, your probate will be completed more quickly.

Please do not hesitate to call us at tel:5058995696, email us at Cristy@carbon-gaul.com, or fill up this form in The Law Office of Cristy J. Carbón-Gaul, if you have questions. 

We understand that this is typically a very difficult period of time for people dealing with the death of a friend or family member, and we hope to make this process as smooth as possible.