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How to avoid living probate

TAGS: Management
firebrandphotography/Getty Images Close up of probate definition in dictionary
PROBATE AND THE LIVING: Many think of probate as a post-death experience, but there are times when you could end up in a living probate situation. There are ways to avoid that challenge.
There are steps you can take to stay out of probate over your lifetime.

Most people think of probate as something to avoid after they die. But what about while you are still alive?

Many families face the hassle and expense of probate proceedings before death! Wonder how?

Living probate is a common term for guardian and conservatorship proceedings for incapacitated individuals. You can find yourself in this situation if you do not plan for the possibility that you may become disabled and need help with your personal and financial decisions.

If your mental health deteriorates to the point where you can no longer make your own financial and personal decisions, someone else will need to make the decisions for you.

The law does not assign someone (like your spouse or child) by default. If you do not take steps to give someone the authority to make these decisions, your loved ones will need to go to the court and ask the judge to appoint an individual who can act on your behalf.

In Colorado, a guardian will be appointed to make your personal and health care decisions. Also, if needed, the court will appoint a conservator to oversee and take control of your financial assets. The court will then tell the individuals what they can, and cannot, do with you and your assets.

These are two separate court filings that involve medical and psychological evaluations and court hearings. They are very expensive and involved court proceedings, because the court is being asked to remove your personal freedom to manage yourself and your assets. The court does not take this responsibility lightly.

So, how do you avoid these problems, and maintain control of yourself and your assets?

Steps to take

The simple answer is to put an effective estate plan in place before you become incapacitated. A well-designed plan will establish a determination of your disability that is specifically designed by you. The individuals you trust to determine when it’s time for you to give up control should be the people involved, not just some random doctor.

The plan would also clearly define who will take responsibility for your assets and your health care decisions, without any court involvement. That planning should also include the opportunity for you to include specific guidance and directions for how you want your finances handled during your disability.

The plan should also provide you the opportunity to set out in advance your preferences regarding health care choices, nursing home choices, and end-of-life decisions, so the individual you choose will have the information necessary to make the decisions the way you would want them made.

You can retain control over when, who, and what, happens — not the judge!

Proper planning is critical to retaining control and avoiding living probate. If you would like the best possible outcome for you and your family if you become incapacitated before your death, put some plans in place before it's too late.

Dolan, an attorney, helps farm and ranch families achieve comprehensive estate, succession and legacy planning objectives. He is the principal of Dolan & Associates P.C. in Brighton and Westminster, Colo. Learn more on his website,


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