Chapter 20 - § 20.2 • DISTINCTIONS BETWEEN DUTIES TOWARD REAL AND PERSONAL PROPERTY

• Jurisdiction: Colorado

§ 20.2 • DISTINCTIONS BETWEEN DUTIES TOWARD REAL AND PERSONAL PROPERTY

At common law and under the earlier Colorado statutes, the representative had no power over real estate except to sell it to pay debts, and it passed directly at death to the heir or devisee. Under the Code, the real estate still passes at death to the heir or devisee, but the representative has active duties with regard to it until such time as it is clear that it will not be necessary to sell it for claims, taxes, or devises and the interest and title of the successor will only be perfected by a deed of distribution from the representative. C.R.S. § 15-12-709. In most cases, at the end of the four-month period of nonclaim, it will be clear that sale is not required and the representative may relinquish the net rents to the heir or devisee and make his or her accounting for the rents, less expenses and any income taxes paid by the representative on net rents; give a deed of distribution; and thereafter disregard the real property as an asset of the estate. Of course, turning over the right of management to the heir or devisee does not irrevocably release the right of the representative to sell it if some unforeseen event should make it necessary to have recourse to it. If it appears at the outset that the real estate will not have to be sold or mortgaged to settle the estate, the representative can make arrangements as of the date of death to turn management over to the heir or devisee, taking such indemnity as seems suitable in view of the beneficiary's financial responsibility, perhaps retaining the insurance policies to be sure that the estate and the representative are protected with respect to public liability and property damage during the period in which he or she is required by statute to assume management, and arranging matters so that the insurance company cannot settle claims for loss or destruction of the property without the representative's knowledge.

In passing, it should be noted that, by statute, Colorado defines chattels real, such as leases for terms of years, as real property. C.R.S. § 15-12-709; C.R.S. § 38-30-150; McKee v. Howe, 31 P. 115 (Colo. 1892). It also should be noted that, by the Code, real property of the victim is prevented from passing to the convicted murderer. C.R.S. § 15-11-803; Smith v. Greenburg, 218 P.2d 514 (Colo. 1950).

The title to personal property in Colorado similarly passes to the devisee or heir, and the representative similarly has power...