1976, May, Pg. 627. CPC Newsletter.

5 Colo.Law. 627

Colorado Lawyer

1976.

1976, May, Pg. 627.

CPC Newsletter

627Vol. 5, No. 5, Pg. 627CPC NewsletterDetermination of Interests Proceedings

Prior to the adoption of the Colorado Probate Code, this state was blessed with a statute entitled "Determination of Heirship by Special Proceedings." The primary purpose of the Act was to facilitate the clearing of record title to Colorado real property, in which a decedent held an interest, when there had been no probate administration of the decedent's estate. Under that act, any interested party could petition the appropriate district court to determine the descent of property. The only requirements were that the decedent died intestate, that one year had elapsed since the death, and that no probate administration was pending or had been concluded in which the descent of property had been determined. The proceedings instituted by the filing of such a petition were commonly known as "determination of interests proceedings."

Under this former procedure, the petition recited, among other pertinent data, the names of the decedent and his heirs and a description of the property. Notice of the filing of the petition was published and served personally (per the Colorado Rules of Civil Procedure) upon all named parties in interest. If an objection was filed, the court held a hearing; but absent an objection many of the district courts entered a decree determining the heirs of the decedent and the present owners of the property on the basis of the verified petition. Some courts required further supporting affidavits and some a formal hearing with testimony. In most cases the procedure was relatively quick and sure.

Repeal of the StatuteOn July 1, 1974, with the adoption of the Colorado Probate Code, the determination of interests statute was repealed. Possibly more howls of anguish have resulted from that repeal than from any other single aspect of the CPC. Frequent demands have been made that the old procedure be reenacted. Is that step necessary, or is the problem capable of solution under the CPC as it presently exists? The author believes the latter is true, although some amendment to the code may be desirable to make specific what is now included only by implication and to clarify an ambiguity with respect to the rights of parties in possession.

The CPC has no...