CHAPTER 13 PROBATE PROCEEDINGS IN CONVEYANCE OF MINERAL INTERESTS
| Jurisdiction | United States |
(Apr 2015)
PROBATE PROCEEDINGS IN CONVEYANCE OF MINERAL INTERESTS
Partner
Olsen Traeger & Ursery, LLP
Denver, Colorado
[Page 13-1]
LEIA G. URSERY is a partner in Olsen Traeger & Ursery, LLP. She specializes in estate planning, estate and trust litigation/administration, and probate protective proceedings, including guardianships and conservatorships. Ms. Ursery graduated from the University of Denver Sturm College of Law in May 2004 and obtained her LL.M. in Taxation from the University of Denver, Graduate Tax Program, in June 2010. During her last year of law school, Ms. Ursery served as the law clerk for the Honorable Judge C. Jean Stewart of the Denver Probate Court. Ms. Ursery began her practice at Olsen & Traeger, LLP, in October 2004. In 2011, Ms. Ursery helped to establish the Probate Practicum at the University of Denver, College of Law, which she continues to teach at this time. Ms. Ursery is a member of the Statutory Revisions and Orange Book Committees of the Colorado Bar Association-Trust and Estate Section. Ms. Ursery was selected for the Class of 2013 Colorado Bar Association Leadership Training (COBALT) program and she is a former member and Chair of the Colorado Association Young Lawyers Division Executive Council. Ms. Ursery concentrates her volunteer efforts within the community by serving as a frequent volunteer for Colorado Lawyers for Colorado Veterans, Senior Law Day, Lawline 9, the Pro Se Clinic at the Denver Probate Court and the Wills Lab provided through the University of Denver, College of Law. Ms. Ursery has been named as a Colorado Super Lawyer-Rising Star since 2010.
Leia G. Ursery is a partner in Olsen Traeger & Ursery, LLP, who specializes in estate planning, estate and trust litigation/administration and probate protective proceedings, including guardianships and conservatorships. Ms. Ursery graduated from the University of Denver, College of Law, in May 2004 and obtained her LL.M. in Taxation from the University of Denver, Graduate Tax Program, in June 2010. During her last year of law school, Ms. Ursery served as the law clerk for the Honorable Judge C. Jean Stewart of the Denver Probate Court. Thereafter, Ms. Ursery began her practice at Olsen & Traeger, LLP, in October 2004 and became a partner in 2013. In 2011, Ms. Ursery helped to establish the Probate Practicum at the University of Denver, College of Law, which she continues to teach at this time. Additionally, Ms. Ursery teaches Estate and Gift Taxation at the University of Colorado - Denver. Ms. Ursery is a member of the Executive Council for and Statutory Revisions and Orange Book Committees of the Colorado Bar Association - Trust and Estate Section and a member of the Executive Council for the Colorado Bar Association - Tax Section. Ms. Ursery was selected for the Class of 2013 Colorado Bar Association Leadership Training (COBALT) program and currently serves as a Colorado Bar Association - Board of Governors Representative on behalf of the Denver Bar Association. Additionally, she is a former member and Chair of the Executive Council for the Colorado Bar Association - Young Lawyers Division. Ms. Ursery concentrates her volunteer efforts within the community by serving as a frequent volunteer for Colorado Lawyers for Colorado Veterans, Senior Law Day, Lawline 9, the Pro Se Clinic at the Denver Probate Court and the Wills Lab provided through the University of Denver, College of Law. Ms. Ursery has been named as a Colorado Super Lawyer - Rising Star since 2010.
[Page 13-2]
Overview of Uniform Probate Code
The Uniform Probate Code was approved and recommended for enactment by the Uniform Law Commission in 1969.1 As with other uniform laws, the Uniform Probate Code is designed to promote efficiency and continuity with respect to the transfer of property upon death regardless of where a person resides. However, at this time, the Uniform Probate Code has only been adopted in whole or in part by eighteen states.2 Accordingly, the probate process is still burdensome and expensive in many states so, as a result, many people utilize trust planning and other transfer-on-death designations as part of their overall estate plan.
Colorado progressively adopted its own version of the Uniform Probate Code beginning in 1973.3 The Colorado Probate Code is located under C.R.S. §§ 15-10-101 through 15-17-103. As with the Uniform Probate Code, the Colorado Probate Code has seen multiple amendments over time. While some changes have originated from the Uniform Law Commission, many changes to the Colorado Probate Code are initiated and pursued by members of the Colorado Bar Association - Trust and Estate Section, Statutory Revisions Committee.
The Colorado Probate Code applies to a variety of matters. For the purpose of this discussion, this includes, but is not limited, property of decedents who are domiciled in Colorado, regardless of where the property is located, and property of non-resident decedents that is located in Colorado.4 In most circumstances, the probate process in Colorado is fairly easy to navigate.
Testate Succession vs. Intestate Succession
Upon an individual's death, the disposition of his or her property will be governed by the laws of testate and/or intestate succession.
If a decedent leaves a valid will, the decedent's property passes in accordance with testate succession. A will includes one or more testamentary instruments wherein an individual "appoints an executor, revokes or revises another will,... or expressly excludes or limits the right of an individual or class to succeed to property of the [individual] passing by intestate succession."5 In other words, a will identifies the person(s) and/or organization(s) who will receive the decedent's property upon death and the person or institution that is responsible for administering the decedent's estate. The individual executing the will must be at least eighteen (18) years old and be of sound mind at the time the will is signed.6 A person will be considered as having sound mind if he or she "(1) understands the nature of the act, (2) knows the extent of his or her property, (3) understands the proposed testamentary disposition, and (4) knows the
[Page 13-3]
natural objects of his or her bounty, and (5) the will represents the person's wishes."7 Finally, a will is considered to be self-proving if it is attested by two witnesses and acknowledged before a notary public.8
If a decedent does not leave a valid will, the decedent's property passes in accordance with intestate succession, which means that the decedent's heirs will receive such property.9 Additionally, the principles of intestate succession may apply even if a valid will exists if any property is not effectively disposed of by the will.10 For example, if a will provides that the residuary estate passes to a devisee who is neither the decedent's grandparent nor a descendant of the decedent's grandparent and the devisee does not survive the decedent, the property would revert back to the decedent's heirs.11 To the extent a decedent's heirs cannot be determined, the decedent's property would pass to the State of Colorado;12 however, with the availability of online research tools, this situation does not frequently occur.
Contrary to the belief of many, a surviving spouse is not always the sole heir of a decedent's estate. The intestate share of a surviving spouse will depend on whether the decedent is survived by one or both parents and whether the decedent has descendants that are not also descendants of the surviving spouse.13 The following chart reflects the intestate share of a surviving spouse under various situations under C.R.S. § 15-11-102:;
| No descendent or parent survives the decedent | Surviving spouse receives the entire intestate estate | C.R.S. § 15-11-102(1)(a) |
| All of the decedent's surviving descendants are also descendants of the surviving spouse | Surviving spouse receives the entire intestate estate | C.R.S. § 15-11-102(1)(b) |
| No living descendant of the decedent but at least one of the decedent's parents is still living | Surviving spouse receives the first $300,000.00 of the intestate estate, plus three-fourths (3/4) of the remaining intestate estate | C.R.S. § 15-11-102(2) |
| All of the decedent's surviving descendants are also descendants of the surviving spouse but the surviving spouse has other descendants that are not descendants of the decedent | Surviving spouse receives the first $250,000.00 of the intestate estate, plus one-half (1/2) of the remaining intestate estate | C.R.S. § 15-11-102(3) |
| One or more of the decedent's surviving descendants are not a descendant of the surviving spouse | Surviving spouse receives the first $150,000.00 of the intestate estate, plus one-half (1/2) of the remaining intestate estate | C.R.S. § 15-11-102(4) |
[Page 13-4]
With respect to any share of the decedent's intestate estate that does not pass to a surviving spouse, the following distribution provisions apply:;
| Decedent's descendants per capita at each generation | C.R.S. § 15-11-103(2) |
| Then-living parent(s) in equal shares (if no surviving descendant of the decedent) | C.R.S. § 15-11-103(3) |
| Descendants of decedent's parents per capita at each generation (if no surviving descendant or parent of the decedent) | C.R.S. § 15-11-103(4) |
| One-half (1/2) to decedent's paternal grandparent(s), or their respective then-living descendants per capita at each generation, and one-half (1/2) to decedent's maternal grandparent(s), or their respective then-living descendants per capita at each generation (if no surviving descendant or parent of the decedent or descendant of decedent's parents) | C.R.S. § 15-11-103(5) |
Several provisions can modify the foregoing. For example, a parent may be barred for receiving an intestate share of the decedent's estate if the parent's...
To continue reading
Request your trial