Notice and Due Process in Probate Revisited
| Jurisdiction | Colorado,United States |
| Citation | Vol. 14 No. 1 Pg. 29 |
| Pages | 29 |
| Publication year | 1985 |
1985, January, Pg. 29. Notice and Due Process in Probate Revisited
Colorado Rule of Probate Procedure 8.1 must surely be one of the more curious procedural rules in Colorado, or elsewhere for that matter. The rule, captioned "Constitutional Adequacy of Notice" reads:
Adequacy of Published NoticeWhen statutory notice is deemed by the court to be constitutionally inadequate, the court shall provide by the local rule or on a case by case basis for such notice as will meet constitutional requirements.
The rule is intended as a hint both to the courts and practitioners that the scheme provided by the Colorado Probate Code for giving notice in formal proceedings may have constitutional defects. The concern, in fact, stemmed principally from the 1975 amendment to the general notice statute, CRS § 15-10-401. The amendment shortened the basic time period from fourteen to ten days and allowed notice by mail to include "ordinary first class mail," as well as certified or regular mail.
Where notice is given by certified or registered mail, the effectiveness of notice is measured by the date shown on the receipt; where given by regular mail, the notice is measured from the date of mailing. With a generally perceived decline in the speed and accuracy of the regular postal service, a legitimate question arises as to the constitutional adequacy of that notice.
The constitutional standard is that of Mullane v. Central Hanover Trust Co.(fn1) This was a trust case, and the question was the adequacy of published notice as to the interests of beneficiaries in a court proceeding to approve a bank's common trust fund accounting. In analyzing the kind of notice which would allow a court to exercise its jurisdiction, the U.S. Supreme Court discarded the traditional distinctions between proceedings in rem, in personam, and quasi in rem. Rather, it defined due process in fairness terms: notice must be reasonably calculated to inform the interested parties and to provide them with a reasonable opportunity to appear and be heard. State courts have been slow to apply the Mullane doctrine to the area of decedents' estates.(fn2)
The principal area of reluctance has been in the area of creditors' claims. State statutes commonly provide for notice to creditors by publication...
To continue reading
Request your trial