Chapter 20 - § 20.39 • COLORADO FIDUCIARIES' POWERS ACT

• Jurisdiction: Colorado

§ 20.39 • COLORADO FIDUCIARIES' POWERS ACT

In 1967, the legislature passed the Colorado Fiduciaries' Powers Act, which has had a profound effect upon the technique of drafting wills and trust instruments. Under prior law, an administrator had only abbreviated powers until they were increased by court order, and it appeared that an executor had very few greater powers than an administrator unless the will conferred them. It had been customary for well-drawn wills and trust instruments to confer, in specific terms, a large number of powers on the fiduciary, to be exercised without the intervention of the court. The general purpose of these grants of power was to permit the fiduciary to exercise approximately the same sort of discretion that the nonfiduciary owner of similar property could exercise. Most of the customary powers were designed merely to facilitate the day-to-day administration of the estate or trust property, but some of them allowed the fiduciary to do things that the absolute owner would consider desirable, but which, in the absence of the power, might constitute a breach of trust (for example, mingling estate or trust property with property of others by entering into a unitizing or pooling agreement with respect to a mineral interest, or entering into a long-term lease of realty). There are so many possible powers that frequently the recitation of powers constituted a large or perhaps a major part of the will or trust instrument.

The Colorado act recites some 30 powers covering several pages of the statutes, which an executor, administrator with the will annexed, or other person (however titled) acting under the terms of a will or a trustee, whether corporate or individual, will have, unless the governing instrument denies some part or all of the powers recited. Certain trusts created by law, such as constructive and resulting trusts, trusts for the benefit of creditors, etc., are excluded from the operation of the act. Coincidentally with the adoption of the Code, the act was expanded so that administrators, special administrators, and conservators were given the same powers as executors, so that now practically all kinds of fiduciaries except guardians and the public administrator, by virtue of their respective offices, have the powers described in the act, unless denied by the will or a court order or otherwise excluded from the operation of the act.

A fiduciary subject to the act may exercise, without court authorization, every act...