From: John DeBruyn [jdebruyn@debruyn.com]
Sent: Friday,
April 10, 2009 8:02 AM
To: Shelly D Merritt; Connie T.
Eyster
Cc: David K. Johns; TJ Aldous; Preston Branaugh; Carl Stevens;
Eugene Zuspann; BETTE HELLER; franklin, sandra; Constance
Wood
Subject: Amendment to section 15-12-901 to permit repeal of
section 15-12-102
Hi Shelly and Connie:
Moving forward on the
possibility that section 15-12-102 (appended for reference following my
signature) could be repealed as suggested a few meetings ago, I have prepared
the following additions to section 15-12-901 which is where the explanation of
what a probated will is belongs as that is where it applies:
15-12-901.
Successors' rights if no administration. (1)(a) As used in this subsection (1),
"probated will" means a will which is declared to be valid by an order of
informal probate by the registrar, or an adjudication of probate by the
court.
(b) Except as
otherwise provided in paragraph (c) of this subsection (1):
(I) In the absence of administration, the heirs and devisees
are entitled to the estate in accordance with the terms of a probated will or
the laws of intestate succession.
(II) Devisees may establish
title by the probated will to devised property.
(c) A duly
executed and unrevoked will which has not been probated may be admitted as
evidence of a devise if:
(I) No court proceeding concerning the succession or administration
of the estate has occurred, and
(II) Either the devisee or his successors
and assigns possessed the property devised in accordance with the provisions of
the will, or the property devised was not possessed or claimed by anyone by
virtue of the decedent's title during the time period for testacy proceedings.
(2) Persons entitled to property by exemption or
intestacy may establish title thereto by proof of the decedent's ownership, his
death, and their relationship to the decedent.
(3) Successors
take subject to all charges incident to administration, including the claims of
creditors and allowances of surviving spouse and dependent children, and subject
to the rights of others resulting from abatement, retainer, advancement, and
ademption.
Situating the probated will requirement in section 15-12-901
rather than as free standing requirement will keep the requirement from being in
appropriately being applied under sections 15-13-204 and 205 concerning acts
within Colorado of foreign personal representative without the will, if one is
involved, being probated by order of informal probate by the registrar or
adjudication of the court.
Section 15-12-102 is not needed with respect
to the appointment of a domicilliary personal representative since that is
addressed in section 15-12-103 (appended for reference following my signature)
and the produre for appointment of a personal representative pursuant to a
nomination in a will as provided in parts 2, 3 and 4 of article 12.
Would
you include this on the committee web site for the next
meeting,
Thanks,
John
For reference:
15-12-102.
Necessity of order of probate for will.
(1) Except as provided in section 15-12-1201, to be
effective to prove the transfer of any property or to nominate an executor, a
will must be declared to be valid by an order of informal probate by the
registrar, or an adjudication of probate by the court; except that a duly
executed and unrevoked will which has not been probated may be admitted as
evidence of a devise if:
(a) No court proceeding concerning the succession or
administration of the estate has occurred, and
(b) Either the devisee or his successors and assigns
possessed the property devised in accordance with the provisions of the will, or
the property devised was not possessed or claimed by anyone by virtue of the
decedent's title during the time period for testacy proceedings.
15-12-103. Necessity of appointment for administration.
Except as otherwise provided in article 13 of this
title, to acquire the powers and undertake the duties and liabilities of a
personal representative of a decedent, a person must be appointed by order of
the court or registrar, qualify, and be issued letters. Administration of an
estate is commenced by the issuance of letters.
--
John DeBruyn
voice 303-377-1724 fax 303-321-2655
jdebruyn@debruyn.com http://debruyn.com/
Post Office Box 24306,
Denver CO 80224 USA