Chapter 1 - § 1.3 • NEED FOR PROBATE

• Jurisdiction: Colorado

§ 1.3 • NEED FOR PROBATE

At common law, it was not necessary to prove a will in court and administer an estate in order to pass the title to real estate, but these steps were necessary with respect to personal property.⁸ By statute, now, there generally is a requirement for some formal or informal proceeding to take place whenever a decedent dies leaving property of significant value.

The status of title to a decedent's assets following death is not entirely clear under the Probate Code. Under C.R.S. § 15-12-201, a decedent's real and personal property "devolves" to his testate or intestate successors. Under prior law, title, at least as to real estate, "vested" in the decedent's heirs or devisees, and title was perfected by the executor or administrator signing and recording a document that released the fiduciary's administrative powers (e.g., power of sale to raise funds to pay creditors).

C.R.S. § 15-15-102 suggests that an unprobated will may serve as a muniment of title (i.e., evidence of a devise where there have been no court proceedings and where no one other than the successor has possessed or claimed the property). Except for C.R.S. § 15-12-1201 (small estate affidavit procedure), the Code is silent as to the mechanics of perfecting title to assets absent the qualification of a personal representative and administration. The real estate title standards, however, require a personal representative's deed for marketable title. (See § 38.2.)

In the normal case where a personal representative is appointed, the Code does not state explicitly whether the title to the decedent's property vests in the personal representative or in the successors. The Code does provide that the personal representative has "power" over the title to the decedent's property in trust for the decedent's successors and creditors and that a personal representative's "deed of distribution" is the document that transfers ownership of both real estate and personal property to the successors. This would seem to be the equivalent of...