Determination of Heirship by Special Proceeding and Temporary Conservatorship
| Publication year | 1985 |
| Pages | 1781 |
| Citation | Vol. 14 No. 9 Pg. 1781 |
1985, October, Pg. 1781. Determination of Heirship by Special Proceeding and Temporary Conservatorship
Attorneys frequently field requests from prospective clients or their Realtors to solve troublesome problems in providing clear title to real estate at real estate closings. Time is often of the essence, and the approaching closing cannot be delayed. One special problem may be that Mom, Dad or a spouse died and no one thought a probate of the deceased's estate was necessary until, a year later, the title company insuring title required letters of appointment and a deed from a personal representative.(fn1) Another problem may occur when the owner or co-owner suddenly becomes physically or mentally ill, does not recover in time for the closing and no durable power of attorney from the disabled person in favor of the prospective client was executed prior to the disability.
The attorney may meet these challenges effectively with several useful, but often overlooked tools. Under proper circumstances and with the cooperation of the families and the court, court supervision may be simplified and expedited. This may be accomplished by using the provisions under the Colorado Probate Code for determination of heirship by special proceeding and for appointment of a temporary or a special conservator.
Neither the Colorado Probate Code nor the Uniform Probate Code originally contained provisions for determination of heirship by special proceeding. These provisions, passed in the 1979 legislative session, are set forth in CRS § 15-12-1301.(fn2) The statute provides that title to real, as well as personal, property shall pass pursuant to the decree issued by the court upon recording of a death certificate and a decree of heirship setting forth the findings as alleged in the petition.(fn3) Title is good even if the petitioner who obtained the decree lies about the identity of the heirs. Rather than affecting title, misstatements under oath make the petitioner liable for perjury, leaving the omitted heirs to civil or criminal remedies.(fn4) As a result, once the requirements of this section are met, good title is vested in the heir or heirs set forth in the decree.(fn5)
Since an heir, according to the Colorado Probate Code, is a person who would inherit in the event of an intestacy,(fn6) the decree of heirship is only available if the decedent died without a will.(fn7) Additionally, more than one year must pass since the death of the person who owned the property without probate of the estate having been conducted.(fn8) If these threshold requirements are met, a person may petition the court for a decree of heirship.
The proceeding to obtain a decree of heirship is initiated by filing with the court a petition in writing signed by an...
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