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Moving forward on the possibility that section 15-12-102 (appended for reference following my signature) could be repealed as suggested a few meetings ago, I have prepared the following additions to section 15-12-901 which is where the explanation of what a probated will is belongs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