Chapter 15 - § 15.4 • PROCEDURE TO ENFORCE RIGHT AGAINST ESTATE

• Jurisdiction: Colorado

§ 15.4 • PROCEDURE TO ENFORCE RIGHT AGAINST ESTATE

Prior to the Code and under the Code, the court of probate or other court of competent jurisdiction may deal with claims against decedents, the probate court by way of a claim aptly perfected or by another court by bringing an action. However, prior to the Code, the statute of nonclaim made recourse to any court other than the court of probate difficult because the statute required claims to be filed or presented within that restricted period, and the question to be resolved was whether, if a judgment was rendered in another court after the nonclaim period, the claim could be satisfied from the inventoried assets of the estate. This controversy was resolved finally by the supreme court in holding that, unless the claim was filed initially in the probate court within the nonclaim period, the inventoried assets of the estate could not be resorted to unless a judgment in the suit in the other court could be filed as a claim before the nonclaim period expired.²¹

Under the Code, the situation is somewhat different. A claim for a pre-death obligation of the decedent must be perfected (by presentation to the personal representative or filing with the court) within four months from the first publication of notice to creditors (subject to certain exceptions),²² or a suit may be brought against the personal representative. A claim for matters arising after the decedent's death may be the subject of either a claim against the estate or a suit against the representative, and the Code makes it clear that the time for presenting the claim and commencing the suit is the same.²³ It is clear under the Code that regardless of the forum selected for seeking a remedy, the statute of nonclaim is fully effective (subject to an exception relating to insurance protection and foreclosure against security).²⁴

The statute of nonclaim has no effect on the foreclosure of a trust deed note. The foreclosure action may be commenced after the statute of nonclaim has run.²⁵ This was the result under pre-Code cases and is the result under C.R.S. § 15-12-803(3)(a). It would appear that if a foreclosure proceeding is commenced for foreclosure of the lien and a deficiency is granted, the deficiency would be the equivalent of an allowed claim, provided questions as to the nonclaim period do not adversely affect it. The Code requires actions of this type to be commenced in the court that appointed the personal representative, which raises a...