1976, December, Pg. 1824. CPC Newsletter.

5 Colo.Law. 1824

Colorado Lawyer

1976.

1976, December, Pg. 1824.

CPC Newsletter

1824Vol. 5, No. 9, Pg. 1824CPC NewsletterAncillary Proceedings

The Colorado Probate Code provides three methods for the collection or transfer of the Colorado assets of a non-domiciliary decedent by a personal representative who has been appointed in the state of domicile. These methods are collection by affidavit; ancillary administration; and abbreviated ancillary proceeding.

Collection By AffidavitThe first, collection by affidavit, allows a foreign domiciliary personal representative sixty days after the nonresident decedent's death to collect from a Colorado debtor personal property only (including items of tangible personalty, instruments of indebtedness, obligations, stocks and choses in actions), by presentation to the debtor of proof of the personal representative's authority, an affidavit reciting the fact of death, the absence of a Colorado estate proceeding, and his entitlement to the property, and an inheritance tax release, if the value of the assets exceeds $5,000.(fn1) The local debtor is protected if he transfers the property when shown proof of authority and the affidavit, and if no local creditor has notified him not to pay the foreign domiciliary personal representative.(fn2) The debtor is not required to deliver the assets to the foreign domiciliary personal representative who complies with this procedure and could force collection through one of the following methods.

Ancillary AdministrationThe second method is an ancillary estate administration with appointment of the foreign domiciliary personal representative or his nominee as local personal representative, probate of any foreign will either formally or informally, and administration in supervised or unsuper-vised proceedings.(fn3) This type of administration differs in only the following respects from that of a resident decedent's estate.

1. Notice to Executive Director, Department of Revenue: A copy of the application for probate of a nonresident decedent's will must be served on the Executive Director at the time it is filed with the Colorado Court.(fn4) Service is apparently not required on application for ancillary administration of a nonresident's intestate estate nor pursuant to the third method, the abbreviated ancillary proceeding.

2. Formal appointment required under certain circumstances: If a foreign domiciliary personal representative has been appointed, he or his nominee has priority for appointment in an ancillary administration.(fn5) An interested party such as a resident creditor who is not the foreign domiciliary personal representative must be appointed in formal proceedings.(fn6)

3. Distribution: A local personal representative who is not the foreign domiciliary personal representative makes post-administration distribution of personal property to the foreign domiciliary personal representative.(fn7) A local personal representative, whether or not the foreign domiciliary personal representative, however, conveys real estate not sold during local administration to the nonresident decedent's successors.(fn8)

4. Three-year probate and appointment limitation inapplicable: If there has been a probate of a will or appointment of a personal representative in another jurisdiction, there is no three-year limitation for probate or appointment proceedings in Colorado. Any interested party can commence an ancillary esatate administration in Colorado at any time.(fn9)

   Abbreviated Ancillary ProceedingThe third method is the abbreviated ancillary proceeding with which this article is principally concerned. This type of proceeding is possible if there is no Colorado administration pending and a personal representative has been appointed in the decedent's domicile. If these two requirements are met, the foreign domiciliary personal representative need only file in a Colorado court having jurisdiction over probate matters in a county in which decedent's property is located authenticated copies both of his foreign...