Who inherits with and without a will

Bottom line first. Who gets the house depends on one question: did the person leave a will that covers it? If yes, the will leads. If no, Colorado law decides, in a fixed order. This lesson shows that order. We are sorry for your loss, and you do not have to learn this in one sitting.

Two paths: a will, or no will

A will is a signed paper that says who gets a person's property after death. The person who died is called the decedent. A person named in a will to receive property is a devisee (C.R.S. 15-10-201). A will can also keep someone out: the law lets a will "expressly exclude or limit the right of an individual or class to succeed" to the part that passes without a will (C.R.S. 15-11-101(2)).

Dying without a will is called dying intestate. The same word covers a will that does not cover everything. Any part of the estate "not effectively disposed of by will or otherwise" passes by intestate succession, which means the order of heirs set by statute, to the decedent's heirs (C.R.S. 15-11-101(1)). An heir is a person the statute says gets property when there is no will for it.

Two things to keep in mind. First, a will does not move the house by itself. The court still has to name someone to act and the deed still has to be handled (next lessons). Second, some houses never pass through a will at all, such as a house held in joint tenancy or with a beneficiary deed. Lesson 2 covers those.

The order of heirs when there is no will

The statutes work like a ladder. You go down the ladder until you find living people on a rung. The Colorado court instructions for probate without a will (JDF 907) summarize it this way:

1. Surviving spouse. A husband or wife at the time of death is an heir. If the decedent had a signed designated beneficiary agreement, that person can take the spouse's place in the order and gets the whole estate if no descendant survives, or half if one does (C.R.S. 15-11-102.5; JDF 907).
2. Descendants. Children, and the children of a child who has died, and so on down. A descendant is a child, grandchild or later generation.
3. Parents. They inherit only when no descendant survives (C.R.S. 15-11-103(4)).
4. Descendants of the parents. That means brothers and sisters, and if one has died, their children (nieces and nephews) (C.R.S. 15-11-103(6)).
5. Grandparents, and if they are gone, their descendants such as aunts, uncles and cousins (C.R.S. 15-11-103(7) and (9)).
6. The State of Colorado, only if there is no taker at all (C.R.S. 15-11-105).

The court form puts it plainly: if a person who would be an heir died before the decedent, "their children substitute for them." So you must look at grandchildren, nieces and nephews when you list heirs (JDF 907).

How the spouse's share works

The spouse does not always take everything. The size of the spouse's share depends on who else survived (C.R.S. 15-11-102). If more than one situation fits, the one that gives the spouse the largest share is used.

• Entire estate to the spouse if no descendant or parent survives, or if every descendant of the decedent is also a descendant of the spouse and the spouse has no other descendants (15-11-102(1)).
• First $300,000 plus three-fourths of the rest if no descendant survives but a parent does (15-11-102(2)).
• First $225,000 plus one-half of the rest if all the decedent's descendants are also the spouse's, but the spouse has other descendants (15-11-102(3)).
• First $150,000 plus one-half of the rest if one or more of the decedent's descendants are not the spouse's (15-11-102(4)).

Those dollar amounts are the figures printed in the statute. The law says they "shall be increased or decreased" each year using a cost of living adjustment (C.R.S. 15-11-102(6); 15-10-112). So the amount for a death in a given year can be higher than the printed number. Check the current figure with the court or a lawyer.

How the rest is divided: "per capita at each generation"

Whatever the spouse does not take goes to the descendants. The statute divides it "per capita at each generation" (C.R.S. 15-11-103(3); 15-11-106(2)). In plain words: look at the closest generation that has anyone alive. Make one equal share for each living person in that generation, plus one share for each person in that generation who has died but left living descendants. The living people take their shares. Each dead person's share is split among that person's own descendants the same way.

The 120-hour rule

To inherit, an heir must outlive the decedent by 120 hours, which is 5 days. Someone who does not is treated as if they died first. If it is not shown by "clear and convincing evidence" that the person made it 120 hours, the law assumes they did not (C.R.S. 15-11-104(1)(a)). A baby in the womb at the death counts as living if the baby lives 120 hours after birth (15-11-104(1)(b)). Court staff also may not act on an application before 120 hours have passed since death (JDF 907).

Example with real numbers

Marcus owned a house and some savings and died with no will. Everything adds up to $500,000. He is survived by his wife, Elena, and by his mother, Ruth. They had no children. His father died years earlier.

1. No descendant survives, but a parent does. That is the "parent survives" situation, so Elena takes the first $300,000 plus three-fourths of the balance (15-11-102(2)). We use the statute's printed number to keep the math simple.
2. Balance after the first $300,000: $500,000 minus $300,000 = $200,000.
3. Three-fourths of $200,000 = $150,000.
4. Elena's total: $300,000 + $150,000 = $450,000.
5. Ruth, the surviving parent, takes what is left: $500,000 minus $450,000 = $50,000 (15-11-103(4)).

Now a second case with no spouse. Dana died with an estate worth $90,000 and no will. She had three children: Jordan, Priya, and Sam. Sam died before Dana, leaving two children.

1. The closest generation with someone alive is the children. Jordan and Priya are alive. Sam is gone but left descendants, so Sam gets a share too. That makes 3 equal shares.
2. $90,000 divided by 3 = $30,000 per share (15-11-106(2)).
3. Jordan receives $30,000. Priya receives $30,000.
4. Sam's $30,000 is split between Sam's two children: $30,000 divided by 2 = $15,000 each.

The same house can end up shared by several people. If you inherit with others, see lesson 6 for what that means in practice.

Special cases

• A parent can be barred from inheriting from a child if parental rights were ended, or in certain cases of a child who died under 18 (C.R.S. 15-11-114).
• A person related in more than one way gets only one share, the larger one (C.R.S. 15-11-113).
• No one is shut out for being a non-citizen (C.R.S. 15-11-111).
• A gift given during life counts against an heir's share only if it was written down as an advance (C.R.S. 15-11-109).

This is general education, not legal advice. If a family tree is messy, ask the court's self-help center what to file or talk to a lawyer.