How to Finish Probate and Get Authority to Sell Real Estate in Colorado

Detailed Answer

When a will seems “outdated” (for example: it uses old descriptions, lists property that no longer exists, or predates later deeds or beneficiary designations), the central questions are (1) is the will still valid and controlling, (2) did the decedent transfer the property outside of the will, and (3) what formal court steps are required so the personal representative (PR, often called an executor) can legally sell the property.

1. Confirm how title to the property currently stands

Before anything else, check whether the property actually needs probate to transfer. Property often passes outside probate if it’s held:

• as joint tenancy with right of survivorship;
• by payable-on-death / transfer-on-death designation or beneficiary deed; or
• in a living trust.

If title shows joint tenants or a valid transfer-on-death deed, the property may pass outside the will and probate may not be required for that real property.

2. Determine whether the will is valid under Colorado law

Colorado will validity requires compliance with the statutes governing wills (see Colorado Revised Statutes, Title 15 — Probate, Trusts, and Fiduciaries). If the will was properly executed and not revoked, the probate court normally enforces it. If a later will exists or the decedent clearly revoked the old will by a subsequent valid will or by physical act, the later instrument controls.

Link: Colorado Revised Statutes, Title 15 (Probate) — https://leg.colorado.gov/sites/default/files/2019a_crs_title_15.pdf

3. Open probate and get authority to act

If probate is required, the next step is to open a probate case in the district court of the county where the decedent lived. You file a petition to admit the will to probate and to appoint a personal representative. The court issues Letters Testamentary (if the decedent left a will) or Letters of Administration (if no will). Those letters are the court’s official proof of your authority to act for the estate—banks, title companies, and buyers will want to see them before closing a real estate sale.

Colorado court forms and procedural guidance (probate forms) can be found at: https://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=38

4. Selling property when the will’s description is outdated or incorrect

An outdated or imprecise description in the will generally does not by itself prevent sale, but it can create practical and legal issues:

• If the deed on record correctly describes title, the deed (not the will) controls the legal description of the land.
• If title shows problems (e.g., deed errors, prior conveyances, boundary uncertainties), a title company may decline to insure a sale without corrective steps.
• If the will’s language conflicts with later transfers, the court may need to determine whether the property passed outside probate or whether the will still controls.

Practical steps you will likely need:

1. Order a title search. The title report will show whether the property is owned by the decedent, held jointly, or transferred by deed or beneficiary instrument.
2. If title is clear and the court has issued letters, the PR can usually sign a deed and close the sale. Provide the buyer and title company with a certified copy of the Letters Testamentary/Administration and the death certificate.
3. If title defects exist or the will’s description doesn’t match recorded deeds, consider a quiet-title action or petition the probate court for a specific order approving sale or confirming authority to correct the deed. The court can issue an order to resolve disputes and allow marketable-title mechanics to proceed.

5. When you need a court order rather than relying on letters alone

Ask the court for explicit approval when:

• the sale is not clearly authorized by the will or would breach a specific testamentary provision;
• property description in the will is ambiguous and a buyer or title insurer refuses to proceed;
• interested persons (heirs or beneficiaries) object to the sale; or
• a sale involves the homestead, exempt property, or unusual estate assets that trigger statutory protections.

A court order approving the sale resolves competing claims, provides title companies with comfort, and protects the PR from later personal liability.

6. Steps after sale authority is in hand

1. Provide required notices to beneficiaries and heirs and to known creditors.
2. List and sell the property with the PR’s authority or under a court order; use a licensed broker if required to get fair market value.
3. Pay estate debts, liens, taxes, and closing costs from sale proceeds (federal estate tax rules may apply for large estates; Colorado currently has no separate state estate tax but consult counsel).
4. Distribute remaining proceeds according to the will or Colorado’s intestacy rules if there is no valid will.
5. File a final accounting and petition for discharge with the probate court to close the estate.

7. If heirs, beneficiaries, or buyers dispute the sale

If a beneficiary contests the will or the PR’s authority, disputes can delay or block a sale. Court adjudication (a hearing) may be necessary. To reduce the risk, provide clear notices, keep thorough records, and consider asking the court to confirm the sale by formal order.

8. When to consult professionals

Work with a probate or real estate attorney and a title company when property is involved. If the will is outdated in ways that affect property descriptions, a lawyer can:

• interpret the will against later deeds or instruments;
• file the correct petitions and court motions;
• bring quiet-title or corrective-deed actions if needed; and
• prepare and present proposed orders the court can enter to authorize sale or deed corrections.

Helpful Hints

• Do not sign a real estate sales contract until you have letters from the probate court or a court order authorizing the sale.
• Order a full title search early. Title problems are the primary cause of probate sale delays.
• Bring the original will to court. Courts typically require the original to admit the will to probate.
• Check for non-probate transfers (joint tenancy, beneficiary deeds, trusts). Those can remove the property from probate entirely.
• Give all known heirs and beneficiaries proper notice per Colorado probate rules so they cannot later claim lack of notice.
• Consider a short hearing asking the court to approve the sale if the buyer or title company wants extra assurance. A signed court order protects the PR from later claims.
• If the decedent signed a later deed or transfer instrument after the will, the deed controls. The will does not undo a subsequent valid deed.
• Keep estate funds separate. Do not use estate accounts for personal expenses; that can create liability for the PR.
• If the will is ambiguous, probate litigation can be expensive. Mediation or settlement with beneficiaries may save time and cost.