Who's in Charge Here?
| Jurisdiction | Colorado,United States |
| Citation | Vol. 51 No. 6 Pg. 48 |
| Pages | 48 |
| Publication year | 2022 |
TRUST AND ESTATE LAW
Priority for Appointment as a Personal Representative in Colorado
BY KELIANNE CHAMBERLAIN
This article discusses priority for appointment as personal representative of a probate estate under the Colorado Probate Code.
When a person dies with assets to be probated, a personal representative must ensure the proper care and distribution of those assets. Disputes may arise over who should be appointed as personal representative, a role that is often difficult and thankless. This article describes who has priority to serve as personal representative for a Colorado estate.
The Role Generally
The personal representative's general duties are to identify, protect, and transact the probate estate assets; to keep adequate records, give required notices, and make appropriate court filings; and to distribute the assets to the appropriate recipients.[1] Other common terms associated with this role are "executor" for a testate estate and "administrator" for an intestate estate. Regardless of whether the decedent left a will, the Colorado Probate Code uses the term "personal representative" for this role.[2] A personal representative may be appointed for an estate in informal proceedings upon application to the court registrar,[3] or in "formal" proceedings upon a petition to the court and after notice and an opportunity for a hearing.[4] Priority to serve as a personal representative is determined by answering the following questions:
■ What are the minimum statutory qualifications to serve?
■ When a personal representative is named in a will, who has priority to serve?
■ When a personal representative is not named in a will, who has priority to serve?
■ If two or more persons have equal priority to serve, how is the appointment determined?
■ If two or more co-personal representatives are appointed, how must they act?
■ When a personal representative's authority terminates, how is a successor appointed? The answers to these questions are found in CRS § 15-12-203 and related provisions.
What are the Minimum Statutory Qualifications to Serve?
A personal representative may be either a natural person or an organization, and both are referred to as "person" in the Colorado Probate Code.[5] Even though the age of legal majority in Colorado is 18, a natural person must be at least 21 years old to serve as personal representative of an estate.[6] Additionally, no "unsuitable" person may serve as personal representative.[7] Suitability is not defined in the statutes, but the personal representative must have capacity to serve[8] and be willing to do so.[9] Suitability is determined in the discretion of the court in formal proceedings.[10]
When a Personal Representative is Named in a Will, Who has Priority to Serve?
This question might seem to be the easiest to answer, because the person named in the will, or named by a person given priority in the will to nominate the personal representative, h as highest statutory priority.[11] However, if Colorado is not the decedent's domicile, the personal representative already appointed in the domiciliary jurisdiction has priority to serve in Colorado, unless a will expressly nominates a different person to serve in Colorado, in which case the Colorado personal representative and the domiciliary representative have equal priority for appointment.[12] The domiciliary personal representative may also nominate a replacement to serve in Colorado, whether or not the will bestows that nomination right, and that nominee has equal priority to serve with a person named in the will to serve in Colorado.[13]
However, even when a will nominates a personal representative, that nomination may be ineffective because a personal representative nomination is not self-executing. The appointment of a nominated personal representative only becomes effective when the will is delivered to the probate court and the court enters an order appointing the personal representative.[14] Further, if the nominated person is deceased or is disqualified due to age or suitability, the nomination will be ineffective,[15] and a nominated person may refuse to serve by filing a renunciation with the court.[16]
Some nominations are revoked as a matter of law. For example, under CRS § 15-11-804(2) (a)(iii), a divorce revokes the nomination of a person's former spouse and nominations of other persons who were related to the decedent only by virtue of their relation to the former spouse, unless the divorce decree or the will expressly provides otherwise. For purposes of this revocation statute, a "relative" of the former spouse is a person related to the former spouse by blood, adoption, or affinity and who, after the divorce or annulment, is no longer related to the testator." When a nomination is ineffective, renounced, or revoked, the effect is the same as if there was no nomination to begin with.
When a Personal Representative is not Named in a Will, Who has Priority to Serve?
A will might fail to nominate a personal representative but still be valid. Generally, for a document to be considered a valid will in Colorado, it must be in writing and signed by the testator or at the testator's direction, and either signed by at least two witnesses or notarized.[18] But a will that does not include witnesses or notarization can be valid as a "holographic" will if the signature and material portions of the document are in the testator's handwriting.[19] And a will that doesn't fit in either of these categories can still be considered a valid will if there is clear and convincing evidence that the testator intended the document to be the testator's will.[20]
When a will fails to include a key instruction for the probate—such as a personal representative nomination—the intestacy statutes govern the omitted subject.[21] CRS § 15-12-203 provides the order of priority for appointing a personal representative where no nomination or will exists:
(b)The surviving spouse of the decedent who is a devisee of the decedent; (b.3) The surviving party to a civil union entered into in accordance with article 15 of title 14, C.R.S., who is a devisee of the decedent; (b.5) A person given priority to be a personal representative in a designated beneficiary agreement made pursuant to article 22 of this tide;
(c)Other devisees of the decedent;
(d)The surviving spouse of the decedent; (d.5) The surviving party to a civil union entered into in accordance with article 15 of title 14, C.R.S.;
(e)Other heirs of the decedent;
(f)Forty-five days after the death of the decedent, any creditor.
As set forth in the statute, if the decedent is survived by a spouse, a party to a civil union, or a designated beneficiary under Colorado Probate Code article 22 who is also a devisee under the decedent's will, that person has next priority to serve[22] (for ease of reference, hereinafter a person in any of these categories will be referred to as a "spouse"). Notably, a person must be both a spouse and a devisee to have this level of priority.[23]
If there is no surviving spouse, or if such person is not a devisee under the decedent's will, other devisees have priority.[24] There can be multiple devisees named in a will. For example, the will may name a group of individuals (e.g., "my children") to receive a certain type of property, or it may specifically name other devisees to receive particular assets. After a spousal devisee, all devisees under the will have equal priority to serve as personal representative; there is no differentiation in priority based on t he importance, value, or class of the asset devised. Therefore, a devisee of sentimental but valueless personal property has equal statutory priority with a devisee of valuable real estate.[25]
If a trust is a named recipient in a will, the trust or trustee is the devisee; the trust beneficiaries are not.[26] For example, if a decedent's estate plan names a revocable trust as the sole devisee under the will and names the decedent's spouse and children as trust beneficiaries, the trustee of the trust is the devisee for purposes of priority, even though the decedent's spouse and children are the trust beneficiaries.
If no devisees are qualified or willing to serve as personal representative, the surviving spouse—even if the surviving spouse is not a recipient under the decedent's will—has next priority to serve.[27] Other heirs of the decedent are next in line.[28] While a "devisee" is a person designated in a will to receive a distribution of real or personal property,[29] an "heir" is a person entitled to inherit the decedent's property under the intestacy statutes.[30] A...
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