Appealing Orders in Probate Cases The Finality Question, 0221 COBJ, Vol. 50, No. 2 Pg. 22

• Author: BY JODY PILMER AND AARON BURTON
• Position: Vol. 50, 2 [Page 22]

50 Colo.Law. 22

Appealing Orders in Probate Cases The Finality Question

Vol. 50, No. 2 [Page 22]

Colorado Lawyer

February, 2021

APPELLATE LAW

BY JODY PILMER AND AARON BURTON

Appealing an order of the probate court requires diligent analysis of whether and when the order is final. This article examines the case law framework for this scrutiny.

Determining whether a probate court order constitutes a final appeal able order has been recognized and lamented as challenging.¹ Generally, under the rule of finality for civil cases, an order is final if it ends the action in which it is entered and leaves nothing further for the court to do to completely determine the rights of the parties to the proceeding.²

Probate cases, particularly those that involve conflict, are subject to complexities that have caused uncertainty in determining the finality of orders. This article discusses Colorado case law that provides guidance on determining the finality of probate orders.

Estate of Bin ford v. Gibson

Estate of Binford v. Gibson' contributed uncertainty to the issue of order finality. This 1992 Colorado Court of Appeals decision stated that finality in probate cases was to be determined on a case-by-case basis, thus announcing a finality test for probate cases different from the above-stated commonly understood rule.⁴ This "issue-based" test, which required the appellate court to determine whether a particular order completely resolved an issue, was not ideal, particularly because a trial court is generally in a better position than an appellate court to make this determination.

The Binford confusion has since been demystified, but what constitutes finality in a probate case continues to require diligent analysis. This is due to the unique procedural nature of the typical probate case, which usually begins with a request to admit a will to probate and appoint a personal representative to marshal and administer a decedent's assets without the court's supervision. That is the fundamental purpose of a probate matter. However, any number of separate "proceedings" can be initiated and pursued by claimants within a probate case while the estate's administration is ongoing.⁵ Thus, a probate case may comprise more than one separately initiated proceeding that is unrelated to other separately initiated proceedings and is separable from the administration of the estate as a whole.^[6] As a result, an order of the probate court may be final as to one proceeding, but leave other matters, including the final distribution and closing of the estate, outstanding.

Scott v. Scott

What constitutes a final probate order can be a nail-biter for a practitioner trying to decide whether to file a notice of appeal, which must be filed with the Colorado Court of Appeals within 49 days of the entry of a final order.⁷Since 2006, probate practitioners have read and re-read the Colorado Supreme Court's opinion in Scott v. Scott when confronted with a question as to a particular order's finality.

In Scott, the Court resolved the perceived confusion and uncertainty regarding finality in probate cases by confirming that the Binford "issue-based" test for finality does not accord with Colorado precedent.⁸ The Court in Scott intended to provide a more straightforward approach to the finality conundrum in probate cases, holding that

the same rules of finality apply in probate cases as in other civil cases; thus, an order of the probate court is final if it ends the particular action in which it is entered and leaves nothing further for the court pronouncing it to do in order to completely determine the rights of the parties as to that proceeding.⁹

There was, however, a caveat. Given the above-described complexities, the Court recognized that the unsupervised administration of an estate in a probate case is different than most civil proceedings, and an appeal can become moot if a party delays filing it until the estate administration is complete. The Court addressed these probate idiosyncrasies by recognizing that a court sitting in probate is in a better position than the appellate court to evaluate the status of a "proceeding" and to determine whether a claim is ripe for review or there is a just reason to delay the appeal.¹⁰The Court thus gave probate courts a deferential nod and allowed them to manage judicial resources by "clearly delineating the scope of a proceeding, applying the same rules of finality as in other civil cases, and incorporating C.R.C.P. 54(b),"¹¹ which permits the probate court to allow the appeal of an otherwise unappealable order.

With this frame work in place, the Court then defined "proceeding." The rule that emerged from Scott is that the unsupervised administration of an estate may involve multiple "proceedings"; an initial petition outlines a set of claims and begins a proceeding, and subsequent pleadings relating to that set of claims are part of the same proceeding.¹² Again, an order is final and appealable only if it leaves nothing further for the court pronouncing it to do to completely determine the rights of the parties as to that proceeding.¹³

The Fine Line

Applying Scott seems simple enough, but in practice it can be...