4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Colorado has followed the Uniform Probate Code since July 1, 1974 and uses terms similar to those in section 4.04.1 of the underwriting manual. (C.R.S. 15-10-201)

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

The answer is yes for both (a) and (b). Colorado law provides for filing of probate within three years of the decedent's death with the following exceptions:

  • If a previous proceeding was dismissed because of doubt about the fact of the decedent's death, appropriate probate, appointment, or testacy proceedings may be maintained at any time thereafter upon a finding that the decedent's death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceedings;

  • Appropriate probate, appointment, or testacy proceedings may be maintained in relation to the estate of an absent, disappeared, or missing person for whose estate a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person; and

  • A proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful may be commenced within the later of twelve months from the informal probate or three years from the decedent's death.

C.R.S. 15-12-108

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

None of the above apply in Colorado.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Yes. Title passes upon recordation of the death certificate in the county in which the property is located, together with a supplementary affidavit by one of legal age having personal knowledge of the facts stating that the person referred to in the death certificate was at the time of death the owner in joint tenancy of the property described in the affidavit. The supplementary affidavit is only necessary if the name of the decedent varies between the way title is held and the death certificate. C.R.S. 38-31-102.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Yes. A spouse married to the testator after the will was signed or children born after execution of the will, subject to certain conditions, may also have their intestate share. C.R.S. 15-11-301 and 302.

Summarize the steps required for a testate administration. Provide statutory citations.

Personal Representative's Deed describing will, time and place of probate and date of his appointment (15-12-711), and noting the state documentary fee, to establish that the transaction was made for value.

Certified copy of letters evidencing appointment of personal representative.

Disposition of death tax liens.

C.R.S. 15-12-711.

Summarize the steps required for an intestate administration. Provide statutory citations.

Personal Representative's Deed reciting intestate death of decedent and date of Personal Representative's appointment, and noting the state documentary fee, to establish that the transaction was made for value.

Certified copy of letters evidencing appointment of the Personal Representative.

Disposition of death tax liens.

C.R.S. 15-12-711

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

No such procedures in Colorado.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

The Colorado legislature in 1979, provided a second or alternative procedure to determine heirship without appointment of a personal representative. This requires a waiting period of one year after death; Petition by "interested person"; Service of Notice; and Decree of Heirship. Title of record is transferred by recording a death certificate, the decree of heirship and a Colorado inheritance tax release. This statute lacks clarity and presents hazards not present in other Probate Code procedures. Therefore, it is best to avoid use of this method. 15-12-1301 through 1304.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

The Probate Code also recognizes that title to real estate, upon death of a person, devolves upon his devisees (if he leaves a Will) or upon his heirs (if he dies intestate). It further declares that in order to effectively prove passage of title under a Will, the Will must be declared to be valid by either an informal order of probate by the registrar or by an adjudication of probate by court order. Provision is also made for probating a Will or for an adjudication of the heirs of an intestate decedent without the appointment of a personal representative. Because creditor's claims are not barred until one year after decedent's death, and because a creditor may apply for appointment as a personal representative, neither of these procedures is safe until the expiration of one year from the decedent's death. An informal probate is not an adjudication by the Court and can be set aside by formal testacy proceedings, whereas a formal probate, bearing the dignity of a court order, is final subject, of course, to certain equitable reasons why such an order may be vacated.

Where no personal representative has been appointed, the following documents should be recorded to evidence passage of title to successors:

Intestate Estate:

Certified copy of Order of Intestacy and Determination of Heirs, reciting that no personal representative was appointed.

Disposition of death tax liens

Testate Estate:

Certified copy of the Last Will and Testament

Certified copy of Court Order admitting the Will to Probate, reciting that no personal representative was appointed.

Disposition of death tax liens.

Title Insurers in Colorado strongly prefer to insure based on the appointment of a personal representative and a personal representative's deed

C.R.S. 15-21-101 and 15-12-301

Do your state statutes provide for an ?inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

Under the inheritance tax statutes applicable to all deaths occurring prior to January 1, 1980, Colorado claims an automatic lien for a period of 15 years. Effective January 1, 1980, the Colorado inheritance tax has been replaced by an "estate tax", which, in a practical sense, is equal to the amount of credit allowed for state death taxes in computing the Federal Estate Tax. As in the past, Colorado claims a lien upon all of the decedent's property until the tax has been paid or until a determination has been made that no tax is due. In addition:

The lien period is 10 years from date of death.

The lien does not follow the property into the hands of "any purchaser, mortgagee, pledge, or other holder of a security interest for a full and adequate consideration in money or money's worth".

The lien will follow the property into the hands of surviving joint tenants, heirs, devises, distributees, and other successors to the interest of the decedent, and to their donees.

How are the conditions prescribed in paragraph 2 above met? A recorded instrument on which a state documentary fee is noted shall be prima facia evidence that the transfer described in such instrument was for full and adequate consideration in money or money's worth.

Releases of lien as to specific property, will not be issued. Instead, the Department of Revenue will issue either of two general certificates after a tax return has been filed and it is satisfied that no tax liability exists, or that the tax liability has been fully discharged or provided for:

"Certificate of Estate Tax Determination and Release of Lien", or "Certificate of Non-Liability and Release of Lien", neither of which may contain a description of an property so released.

Accordingly, as to all estates of persons dying on or after January 1, 1980, in order to release the decedent's interest from the lien of the Colorado estate tax either of the following must be done:

If the transfer to the grantee is for a full and adequate consideration in money or money's worth, the deed should contain a notation of the state documentary fee; or

Otherwise, the procedure is to record a Colorado "Certificate of Estate Tax Determination and Release of Lien," or a Colorado "Certificate of Non-Liability and Release of Lien".

C.R.S. 39-23.5-104 and 113

Do your statutes provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

No.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

Personal Representative's Deed describing will, time and place of probate and date of his appointment (15-12-711), and noting the state documentary fee, to establish that the transaction was made for value.

Certified copy of letters evidencing appointment of personal representative.

Disposition of death tax liens.

C.R.S. 15-12-711.

· Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

Yes. Requirements: Valid Letters of Appointment issued by the Court. Limitations: A personal representative's deed is voidable if:

  • to Personal Representative himself;
  • to Personal Representative's spouse;
  • to Personal Representative's agent or attorney;
  • to any corporation or trust in which the personal representative has a beneficial interest; and
  • any conflict of interest on the part of the personal representative

    UNLESS:

  • the Will or contract entered into by decedent expressly authorized the transaction.
  • the transaction is approved by court after notice to interested persons; or
  • transaction was approved by all interested persons.

C.R.S. 15-12-713

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

See answer to immediately preceeding question. C.R.S. 15-12-713

Does your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

Yes. Procedures:

  • Certified copy of authenticated foreign Letters of Appointment as filed with Colorado Court. This must be certified by the Colorado court.
  • Personal Representative deed.
  • Disposition of death tax liens. C.R.S. 15-13-204.