Probate, the Validity of a Will, and Testamentary Capacity

Probate is a statutory process which involves officially proving the validity of a decedent’s Will, the outcome of which, determines whether the Executor must enter into either informal or formal probate.

Informal probate is generally a streamlined process once the Personal Representative has been appointed as Executor of the estate. Following accepting their appointment, the Executor will obtain Letters Testamentary, which is a document that grants them the power to handle the administrative duties involved with probate (collect assets, pay debts, disperse estate assets to beneficiaries, etc.).

Formal probate can result if a decedent dies intestacy (without a Will) or if the validity of a Will is contested. One way to assess the validity of a Will is to prove the testator (signer) had testamentary capacity at the time of signing. A person is considered to have testamentary capacity if he or she is at least eighteen years of age and of sound mind.

To be of sound mind, one must fully understand the following: (1) he or she is making a Will (2) the nature and extent of the property he or she owns (3) how the property will be distributed under the Will (4) that the Will distributes the property as he or she wishes, and (5) those persons who would normally receive his or her property.

In the event that a Will’s validity is contested due to lack of testamentary capacity, there are two assessments to prove or disprove the claim: The Cunningham Test and the Insane Delusion Test. Both assessments may be used to determine testamentary capacity, but they are not mutually exclusive.

The Cunningham test is used primarily to evaluate whether the testator was of sound mind at the time of signing based on the criteria above. The Insane Delusion Test, in reference to determining the validity of a Will, must prove that the delusion(s) materially affect the disposition of the Will. This means that if someone suffers from insane delusions, the delusions must be directly concerned with the Will for the delusions to impact the testator’s testamentary capacity.

Probate can be avoided by arranging an estate plan accordingly before death. In some cases, this can be done utilizing a Trust that allows for assets to be distributed to beneficiaries outright or held in trust. Under appropriate circumstances, probate can be avoided by the use of a beneficiary deed on any real property. A beneficiary deed allows for the owner of a property (grantor) to designate a grantee-beneficiary to receive title to an interest in real property upon the death of the grantor. The beneficiary deed must be signed and recorded with the appropriate county clerk and recorder before death to be considered valid. The transfer of ownership will only become effective upon the death of the owner, and during the lifetime of the owner, the grantee-beneficiary will have no right to title or interest to the property. [C.R.S.A § 15-15-402]