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Notice and Agenda - 01-20-05 - Meeting Minutes - 12-16-04

 

NOTICE OF MEETING

 

COMMITTEE ON RULES AND FORMS

TRUST AND ESTATE SECTION OF THE

COLORADO BAR ASSOCIATION

 

To:  Members of the Rules and Forms Committee

 

The next meeting will be Thursday, January 20, 2005

12:00 p.m. to 1:15 P.M.

 

BOX LUNCHES WILL BE PROVIDED TO THOSE WHO RESPOND TO

THE NOTICE PROVIDED BY BERT MYRIN

 

Location:

COLORADO BAR ASSOCIATION

9th Floor, Executive Conference Room (Please check the board as you walk in)

1900 Grant Street

Denver, Colorado 80203-4309

(303) 860-1112

 

AGENDA FOR JANUARY 20, 2005 MEETING

 


            Continue work on proposed language for Rule (unnumbered, but presumably Rule 18.2) FOREIGN CONSERVATORS, dealing with ancillary (foreign) conservatorships, and corresponding forms to parallel Form CPC 60, FOREIGN PERSONAL REPRESENTATIVE’S SWORN STATEMENT, and Proposed Form CPC 61, CERTIFICATE OF ANCILLARY FILING.

 

            Consider Cliff Venerable’s suggestion that asset holders be penalized for failure to honor the Small Estate Affidavit (CPC Form 40).

 

            Consider John Launce’s drafts of forms for successor personal representatives to apply for appointment in informal probate.

 

MINUTES OF DECEMBER 16, 2004 MEETING

 

Present on December 16, 2004:   


 

David Bernhart

James Black

            Pete Bullard 

Carl Glatstein

            Michael Holder

            Laurie Hunter         

            Ranae Johnson

            John Launce

            Reda Martin

            Michelle Mieras 

            Bert Myrin

            Richard Schlegel

Michael Stiff

Linda Thompson

Lisa Travis-Fischer

Cliff Venerable

Gordon Williams

 


 

1. The meeting of the Rules and Forms Committee began at 12:00 p.m. on December 16, 2004.   

 

2. The minutes of the November 18, 2004 meeting were approved without objection.

 


3. The committee continued its discussion, triggered by an email from Gene Zuspann stating a concern about proposed Rule 18.1 Foreign Personal Representatives.  Gene had asked whether the term "nonresident decedent" is necessary as a limitation on the application of the rule, as C.R.S. 15-13-204 does not have this limitation.  He has had the experience of a probate started in another state for a decedent residing in Colorado, where there was a need to administer Colorado assets.  Gene thinks the better approach is to allow the foreign personal representative to act in Colorado even if the "nonresident decedent" condition is not met. 

 

4.  The consensus of the committee is that we should not ask SRC to change Article 13 to remove the “nonresident decedent” limitation.  This is uniform law.  The limitation has the benefit of preventing forum shopping, where estates are opened for Colorado residents in other states to take advantage of some tax or other laws in those states, and it protects creditors in Colorado who might otherwise not receive notice of estates of Colorado residents.

 

5.  The committee continued to discuss 15-13-204's term “domiciliary foreign personal representative”.  We reiterated that it means the PR in the state (other than Colorado) where the decedent was domiciled (intended to reside indefinitely) at his or her death.  We agreed that we should not ask SRC to change this language, since this limitation keeps the foreign probate court which initially appointed the “domiciliary” PR (as apposed to courts in other states where there are ancillary proceedings) informed about the case.

 

6. We did agree by unanimous vote to ask SRC to add a definition of “domiciliary foreign personal representative” to the Probate Code, in 15-10-201, as follows:

 

“Domiciliary foreign personal representative” means a personal representative appointed by another jurisdiction in which the decedent was domiciled at the time of his or her death.

 

This corresponds with these definitions now in 15-10-201:

 

(20) “Foreign personal representative” means a personal representative appointed by another jurisdiction.

 

(34)            “Nonresident decedent” means a decedent who was domiciled in another jurisdiction at the time of his or her death.

 

This new definition will hopefully help to clarify this term, which has confused some lawyers.  It took 3 meetings of this committee to agree on its meaning.

 

[Note that we will also be asking SRC for a change approved by our committee earlier to C.R.S. 15-14-433.  The change in language would be from "copies of letters of appointment” to "copies of his or her appointment"  This will clarify that it is not just the "copies of letters of appointment" that need to be filed.  15-13-204 Proof of Authority, for foreign personal representatives, uses the language "copies of his appointment", instead of "letters of appointment".  The former language was thought by the committee to authorize the new proposed Rule 18.1 and the two proposed forms.  Changing the statute would more clearly allow Rule 18.2, and related forms, to be created to require the filing of orders, letters and other documents related to the appointment.  We may also ask SRC to change 15-13-204 from "copies of his appointment” to "copies of his or her appointment”.]

 

7. We looked again at proposed Rule 18 FOREIGN PERSONAL REPRESENTATIVES.  This Rule, and related Proposed Form CPC 60, FOREIGN PERSONAL REPRESENTATIVE’S SWORN STATEMENT, and Proposed Form CPC 61, CERTIFICATE OF ANCILLARY FILING, were approved earlier in the year.  We decided after discussion not to change the Rule as approved earlier.

 

8. Mike Holder, Mike Stiff, Jim Black and Pete Bullard agreed to work on the materials to present to SRC.   

 

9. Mike Stiff said Dave Kirch asked why the forms to apply for probate have client signatures, where in other civil matters the attorney can sign without the client.  We looked at the form and statutes, and found that for informal probate the statute, 15-12-301, requires that the application be verified, but for formal probate the statute, 15-12-402, does not.  We thought that this made sense, since there is no judicial oversight or notice prior to issuance of letters and approval of probate in informal proceedings.

 

10. Cliff Venerable’s suggested that we need a change in the law so that asset holders can be penalized for failure to honor the Small Estate Affidavit (CPC Form 40). 

 

11. John Launce presented drafts of forms for successor personal representatives to apply for appointment in informal probate. 

 

12. The meeting adjourned at 1:15 p.m.

 

 

                                                                        Respectfully submitted,
                                                                        Pete Bullard, Secretary