Chapter 9 - § 9.3 • WHAT LAW GOVERNS

• Jurisdiction: Colorado

§ 9.3 • WHAT LAW GOVERNS

Choice of law issues regarding wills, trusts, and estates are discussed in Eugene F. Scoles, et al., Conflicts of Laws, Chapters 20 through 22, §§ 20.01 through 22.26, 4th Ed. (Thomson/West 2004).

The law of the situs of real estate determines its devolution, and the law of the domicile of the decedent usually, but not always, determines the devolution of the title to personal property.⁶ In the absence of permission (by statute or court decree) by the state in which the real estate is located, unless the will is executed in conformity with the laws of that state, it passes no title. Most states have statutes recognizing the validity of wills properly executed under the laws of the state of execution even though that state law may be different from the law of the state of the situs of the real estate. Probate proves a will only for the purpose of passing title to realty in the state in which probate is had. If one state probates a will, the finding on domicile is not conclusive on the courts of other states. It is possible to have domiciliary proceedings in two states;⁷ however, the Code suggests that the determination as to domicile that is first made should control.⁸ The Uniform Probate Code attempts to minimize the number of cases in which there could be conflicting decisions as to domicile by providing in § 3-202 that if a testacy proceeding is taking place in Colorado and it appears that the question of domicile is being litigated elsewhere, where notice is involved, the Colorado proceeding shall defer to the other proceeding, unless it appears that the Colorado proceeding was first in order of time. This provision was not adopted in the Colorado Probate Code, leaving open the possibility of conflicting claims as to domicile.

In Estate of Loflin,⁹ a husband and wife executed a joint and mutual will in Kansas. On the husband's death the will was probated in Oklahoma...