1973, October, Pg. 1. The Colorado Probate Code Part I.

• Author: by Douglas M. Cain

2 Colo.Law. 1

The Colorado Lawyer

1973.

1973, October, Pg. 1.

The Colorado Probate Code Part I

1Vol. 2, No. 12, Pg. iThe Colorado Probate Code Part IThe following begins a comprehensive series of articles on the new Colorado Probate Code, which becomes effective July 1, 1974.by Douglas M. CainWilliam P. Cantwell Chapman B. CoxConstance L. HauverWilliam L. Hershberger and Norman L. MarkmanHouse Bill 1039 of the 49th (1973) Colorado General Assembly is 146 pages long. It repeals and re-enacts Chapter 153 of C.R.S. 1963. The short title of the new chapter is the Colorado Probate Code (CPC).(fn1) The effective date is July 1, 1974.

The CPC is Colorado's version of the Uniform Probate Code (UPC), promulgated by the National Conference of Commissioners on Uniform State Laws in 1969. Idaho, Alaska, North Dakota and Arizona preceded Colorado in probate reforms, adopting substantial portions of the UPC into the laws of those jurisdictions. Maryland adopted numerous probate reforms before 1969 which were based on preliminary drafts of the UPC.

In October 1972, the Board of Governors of the Colorado Bar Association approved almost all of the provisions of a proposed Colorado Probate Code which had been recommended by the Committee on the Uniform Probate Code of the Probate and Trust Law Section of the Association. The proposed probate law reform thus enjoyed the status of bar-sponsored legislation in the 49th General Assembly.

Senate Joint Resolution Number 7 of the 1972 Session of the Legislature directed the Legislative Council to study the Uniform Probate Code. The Council appointed a Committee on Probate Code with Rep. Ron Strahle as chairman and Senator John Bermingham as vice-chairman. Other members were Senators Fred Anderson and Roger Cisneros and Representatives Ralph Cole, Don Horst, Robert Johnson and Gerald Kopel. Norman Markman and Victor Grandy of the CBA worked closely with the legislative committee, and the work product was Colorado Legislative Council Research Publication Number 194, an extensive document of 206 pages containing the heart of the CPC.

In addition to the extensive work product and efforts of the CBA and legislative committees, an immense amount of work was done prior to, and subsequent to, promulgation of the UPC by the Uniform Law Commissioners. Work on major probate law reform began with the Real Property, Probate and Trust Law Section of the American Bar Association in 1962. It soon became a joint undertaking of that

2group and the Uniform Law Commissioners resulting in the 1969 promulgation. Continuous monitoring of the UPC and efforts for its adoption are occurring under the Joint Editorial Board for the UPC which is made up of members of the Uniform Law Commissioners and the ABA Real Property, Probate and Trust Law Section.

An interesting aspect of the CPC is the inclusion of a statutory statement of purpose. It offers official insight on the thrust of the substantial reform. CPC § 153-1-102 states:

(1) This code shall be liberally construed and applied to promote its underlying purposes and policies.

(2)(a) The underlying purposes and policies of this code are:

(b) To simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons;

(c) To discover and make effective the intent of a decedent in distribution of his property;

(d) To promote a speedy and efficient system for settling the estate of the decedent and making distribution to his successors;

(e) To facilitate use and enforcement of certain trusts;

(f) To make uniform the law among the various jurisdictions.

It is obvious that accomplishment of these purposes requires substantial changes in the substantive probate law of Colorado and the CPC does this. It will be years before all aspects of these changes become second nature to lawyers and courts in Colorado. As with any major change, the unlearning and learning must have a starting place. As an opening wedge in this process, this series of articles offers a preliminary survey of the effect of the CPC on probate practice and estate planning. This initial article covers the question of estate planning practice under the CPC and answers the question of whether the CPC makes a significant difference in the need for a will. It contrasts will making under the CPC with the tested alternatives of life insurance and funded revocable trusts under existing law.

Future coverage will continue the focus on estate planning. It will deal with challenging possibilities under the CPC and the effect of some specific CPC provisions on wills and trusts. Such matters as survivorship, tax apportionment, multiple party accounts, and memorandum disposition of personalty will be included. Also treated will be the "durable power of attorney"---a new idea with significant implications.

Following will making and estate planning, treatment will be given to estate administration under the CPC. Of great importance is the unsupervised administration---the most basic and far-reaching of CPC provisions. This innovation will receive treatment commensurate with its significance. Other administrative innovations and opportunities will also be covered.

Time is of great importance in understanding the CPC. Although the CPC is not effective until July 1, 1974- many months away---the majority of estates being planned today will be administered under the CPC and near-term awareness of the planning opportunities and problems, as well as future administrative options and opportunities, is important right now. An extensive effective date provision is in the CPC. It is interesting and instructive. It offers specific guidance on why CPC provisions have become important today, even with the delayed effective date. It is found in CPC § 153-8-101, which provides:

(1) This code takes effect on July 1, 1974(2)(a) Except as provided elsewhere in this code, on the effective date of this code:

(b) The code applies to any wills of decedents dying thereafter;

(c) The code applies to any proceedings in court then pending or thereafter commenced regardless of the time of the death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of this code;

(d) Every personal representative including a person administering an estate of a minor or incompetent holding

3an appointment on that date, continues to hold the appointment but has only the powers conferred by this code and is subject to the duties imposed with respect to any act occurring or done thereafter;

(e) An act done before the effective date in any proceeding and any accrued right is not impaired by this code. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before the effective date, the provisions shall remain in force with respect to that right;

(f) Any rule of construction or presumption provided in this code applies to instruments executed and multiple-party accounts opened before the effective date unless there is a clear indication of a contrary intent.

(g) The enactment of this code and the repeal and reenactment of this chapter shall not be construed to repeal or supersede the "Uniform Disposition of Community Property Rights at Death Act," as enacted by House Bill No. 1131, enacted at the First Regular Session of the Forty-ninth General Assembly.

Colorado is in the forefront of the most significant organized probate reform in American history. Much of our experience will provide precedents for other states as well as ourselves. Significant professional groups in and out of Colorado have made sincere and devoted efforts to bring wealth transmission up to date in the fast-moving modern world. The CPC represents a great opportunity for the profession and its clients to achieve a simple and more direct result in the probate and estate-planning field. The thoughts and analyses in these articles are intended to help seize this opportunity. However, it will only be achieved as the profession becomes aware of and uses the many interesting opportunities afforded by the CPC.

DOES YOUR CLIENT

STILL NEED A WILL?

I possess nothing

I owe everyone

The rest I leave to the poor. ---Rabelais

Whether or not the CPC is applicable, a person in Rabelais' financial straits probably does not need a will, unless as for Rabelais it is to be an instrument of satire. After the CPC becomes effective in Colorado on July 1, 1974, the question arises whether, for example, a married man or woman of more substantial means than Rabelais will really need a will. An Ohio attorney, in an article entitled "How the UPC Will Affect Your Law Practice: An Attorney's Prognosis."(fn2) concludes that the result of the UPC reforms "is that our clients whose dispositive desires are reflected in the new intestacy law can safely remain intestate. I believe this will include a large number of our clients." Reference in that article is made to a Cleveland study which suggests that the UPC reforms governing the intestate passing of property to the surviving spouse alone will make unnecessary over 40% of all wills now being prepared.

What have we done in Colorado! Have we created a monster of technological unemployment for probate lawyers? Will we have a vast wasteland of formerly busy law offices? The...