Statutes of Limitation in Probate and Trust Litigation
| Publication year | 2016 |
| Pages | 35 |
Articles
Trust and Estate Law
Statutes of Limitation in Probate and Trust Litigation
By Kelly Dickson Cooper, Elizabeth T. Meek, Jessica Schmidt.
Trust and Estate Law articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.
Coordinating Editors
David W. Kirch, Aurora, of David W. Kirch, P.C.—(303) 671-7726, dkirch@dwkpc.net; Constance D. Smith, Denver, of Fairfield and Woods P.C.—(303) 894-4474, csmith@fwlaw.com
This article addresses several statutes of limitation in the context of probate and trust litigation as well as important exceptions to the general rules. It includes a discussion of how the Colorado Probate Code differs from the Uniform Probate Code.
This article addresses the general statute of limitation in probate proceedings and exceptions to it, which deviate from the Uniform Probate Code (UPC). The laches defense to the exceptions is also covered.
Other statutes of limitation of interest to probate and trust litigators, concerning breach of fiduciary duty, final accountings, and equity actions are also discussed.
Time Limit to Initiate an Action to Probate a Will
For those unfamiliar with testacy proceedings, the Colorado Probate Code governs all probate proceedings, including the time limit for probating a will. Generally, the statute of limitations to initiate an action to probate a will, whether formally or informally, is three years after the death of the testator.[1] The three-year time limit is modeled after the UPC's time limit to probate a will under UPC § 3-108. However, Colorado, along with some other original UPC states, created a significant exception to this general rule, which is discussed below.[2]
Exception to the Three-Year Rule to Probate a Will
There are exceptions to the statute of limitations in CRS § 15-12-108(2) for proceedings to construe probated wills, proceedings to determine heirs of an intestate and related appointments, and notably, for situations in which proceedings have not commenced.
This article discusses the latter exception, contained in CRS § 15-12-108(2)(c). It addresses what happens when a decedent dies testate but the will has not been submitted to formal or informal probate. In this situation, CRS § 15-12-108(2)(c) allows for probate of the will "if no previous testacy proceedings or proceedings determining heirship relating to the decedent’s estate have been concluded in this state." This section creates a broad exception allowing for probate of a will that has not been previously submitted for probate in Colorado.
Oil and Gas Leases.
The exception is easily illustrated in the context of oil and gas leasing. Companies seeking to lease mineral interests want to ensure that they are taking a lease from the rightful owner of the interest, and heirs and devisees of former mineral interest owners want to determine their rights to ownership of the minerals. For example, a client who is an oil and gas producer may be purchasing a lease interest covering certain oil, gas, and minerals or making royalty payments based on an affidavit of heirship. The client may be uncomfortable relying solely on such affidavit, particularly if the interest is large, because this may create an unacceptable business risk. If the client finds a will that covers the interest it would like to purchase, but the testator died more than three years ago, the exception becomes important. The exception could be used here to probate the will such that the decedent’s interests would be properly distributed and the client’s position as the rightful owner of the lease solidified.
If a will has been probated or it is clear that the deceased did not leave a will, the interests may be relatively straightforward and may be determined simply by reopening a probate or seeking an intestacy determination.[3]
While the exception has not been addressed by a Colorado appellate court, in two cases involving oil, gas, and mineral rights a Colorado district court has held that the scope of Colorado’s exception is as broad as it appears on its face. In both cases, the court analyzed the CRS § 15-12-108(2)(c) exception and concluded that the three-year statute of limitations did not bar the probate of wills that otherwise would have been far outside the limitations period.[4]
In re Woodward.
In the first case, In re Woodward, petitioners moved for summary judgment based on the argument that the three-year statute of limitations precluded the respondents from filing a formal testacy proceeding. Petitioners were the daughter of the decedents and an oil exploration company holding a lease to...
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