What happens if I don't have a will or trust?

If an individual dies and does not have a will Colorado law makes a will for the decedent. Under Colorado law, the decedent is deemed to have died intestate. 

The rules are a bit complex and it would be necessary to review the Colorado laws to determine who takes the decedent's estate assets. Who takes the assets depends upon the decedents family situation, i.e.- whether there is a surviving spouse, whether there are children, who the parents of the children are and other factors.


If the decedent had a spouse, the spouse will take the entire estate of the decedent provided (1)  there are no living descendants or parents of the decedent or (2) all of the descendant's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the descedent.


If the surviving spouse does not qualify to take the entire estate then the law provides for varying amounts to be paid to the surviving spouse depending upon who else survives the decedent.The provisions of the statute can be found in the Colorado statutes. It is a bit convoluted and you will want to consult with an attorney to sort out all the respective rights of the heirs.


Dying without a will impacts the decedent's assets which pass through the probate process. Often, individuals own assets which pass other than through probate. These are commonly referred to as non-probate assets. Thse types of assets are not controlled by the will. For example, beneficiary designations control who gets assets from life insurance policies and retirement accounts. It is necessary to look at the beneficiary designations to determine who will take those assets as they are not controlled by a will or a trust. In regards to the non-probate type assets, dying without a will makes no difference.


Assets held in joint tenancy are also not subject to the probate process and therefore whether an individual has a will or not does not matter. The surviving joint tenant or joint tenants will automatically take the decedents interest in the property held in joint tenancy.


Colorado law will provide for the decedent's assets to pass to the heirs of a decedent who died without a will or trust. If you plan to die without a will or a trust, or other non-probate mechanisms such as joint tenancy or by the use of beneficiary designation provisions then you should acquaint yourself with Colorado law and how your assets will pass to insure they do pass as you intend.