The Colorado Non-claim Statute
| Publication year | 1992 |
| Pages | 45 |
| Citation | Vol. 21 No. 1 Pg. 45 |
1992, January, Pg. 45. The Colorado Non-Claim Statute
Estate administration regarding notice to creditors drastically changed with the 1988 U.S. Supreme Court case of Tulsa Professional Collection Services, Inc. v. Pope.(fn1) This article discusses the post-Pope duties of a personal representative in administering a decedent's estate which may have creditors' claims against it.
The facts involved Pope's testate death on April 2, 1979, while in a medical center. Notice was published as required by statute. No claim for expenses connected with the decedent's final illness was filed. However, an Application for Order Compelling Payment of expenses of his last illness was filed by the collection service, relying on Oklahoma statutes indicating that an executor "must pay the expenses of the last illness." The collection service argued that this specific statutory command made compliance with the two-month deadline for filing claims unnecessary.
The Oklahoma Supreme Court denied the creditor's claim for payment. In reviewing the Oklahoma non-claim statutes (which are similar to Colorado's), the U.S. Supreme Court focused its authority on the cases of Mullane v. Central Hanover Bank and Trust Co.(fn2) and Mennonite Board of Missions v. Adams,(fn3) both of which concerned due process issues.
In Pope, the U.S. Supreme Court continued to adhere to the principle of balancing the state's interest and the "individual interest sought to be protected by the Fourteenth Amendment." The issue was whether the probate court's involvement with the non-claim statute was substantial enough to trigger the due process clause. The non-claim statute became operative after probate proceedings had been commenced, and the Oklahoma statute directed the executor to publish notice "immediately" after appointment.
In its opinion, the U.S. Supreme Court majority noted:
However, the dissent to Pope opined that the "intimate involvement" of the Probate Court was entirely of an "administrative nature."It is only after all of these actions take place that the time period begins to run, and in every one of these actions, the court is intimately involved. This involvement is so pervasive and substantial that it must be considered state action subject to the restrictions of the Fourteenth Amendment.(fn4)
In Pope, the Court pointed out that the state undeniably had a legitimate interest in the expeditious resolution of probate proceedings. Nevertheless, the Court did not believe that providing actual notice to known or reasonably as-certainable creditors was inconsistent with this goal.(fn5) The Court noted that actual notice need not be
The Court further disavowed any intent to require "impracticable and extended searches in the name of due process." The executor's efforts to uncover the identities of creditors must be reasonably diligent. For creditors who are not reasonably ascertainable, publication notice can suffice. It also is reasonable to dispense with actual notice to those with merely "conjectural" claims.inefficient or burdensome. . . . We have repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice.(fn6)
The Colorado non-claim statutes found in the Colorado Probate Code at CRS § 15--12--801 et seq. were substantially revised in response to Pope, with respect to decedents who die on or after July 1, 1990. Under § 15--12--801, the required notice to creditors for claims arising prior to death was expanded from simply requiring notice by publication to include the permissive authority of the
The similarity between the Colorado amendment and Uniform Probate Code ("UPC") § 3--801(b) is striking. The UPC Joint Editorial Board ("UPC Board") noted:
This optional, mailed notice . . . is designed to enhance the ability of personal representatives to protect distributees against pass-through liability . . . to possibly unbarred claimants. If publication of notice as provided in § 3--801 has occurred and if Po...
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