Chapter 9 - § 9.4 • PROCEDURE

• Jurisdiction: Colorado

§ 9.4 • PROCEDURE

While it may not occur frequently, there seems to be no reason why the will of a nondomiciliary cannot be probated in Colorado in original proceedings if the will is executed in conformity with the requirements of the Code. It may be that there is no property at the domicile or that the will does not conform with domiciliary requirements but does qualify in Colorado, and hence there are no domiciliary proceedings. Original proceedings in informal or formal probate would follow closely the procedure for probate of the will of a Colorado domiciliary (see JDF 910, 913, 917, 920, and 921).

A foreign will may be admitted to probate in Colorado in ancillary proceedings, either in an informal or a formal manner (see JDF 910, 913, 917, 920, and 921).¹⁰ A certified or exemplified copy of the foreign will, together with a certified or exemplified copy of the court order, decree, or decision of the court or tribunal admitting the foreign will to probate, should accompany an application or petition for informal or formal probate in Colorado, and the proceeding should take place in the Colorado court of the county in which the decedent had property, real or personal.¹¹

If the application or petition is for informal or formal probate, as the case may be, the notice requirements for the respective proceedings must be followed (see §§ 3.14 and 3.15) and any representative appointed must within 30 days after appointment give the information required by the Code to heirs and devisees.¹² Apparently, in any appointment proceeding, formal or informal, notice must be given to the domiciliary representative.¹³ If there is a personal representative who is acting at the domicile, unless the personal representative or his or her nominee is the applicant for appointment, the registrar shall delay appointment for 30 days to permit the domiciliary representative to seek appointment.¹⁴ Obviously, if there is a personal representative who was appointed in this state, no further appointment procedure would be proper in the absence of litigation on the subject. There may be a conflict between C.R.S. §§ 15-12-307 and -308 where the application is for appointment of one other than the domiciliary representative or his or her nominee¹⁵ and, apparently, if another than the domiciliary representative or his or her nominee is to be appointed, the proceeding should be formal since objections to appointment can be raised only in such proceedings.¹⁶ If there is a petition for a formal order of testacy or intestacy, apparently the same notice is required to heirs, etc., as would have been required in an original proceeding, and the content of the petition would be similar. The petition would be subject to objection as in original probate if the laws of the jurisdiction of domicile fail to provide reasonable notice and opportunity to contest (otherwise the foreign order is binding on the Colorado court), but if the petition is uncontested, the order of probate will enter in due course. A will from a place in which it is not subject to postmortem probate proceedings can be proved by the certification of the legal custodian of the will in accordance with the provisions of the Code.¹⁷ The three-year limitation on commencing administration proceedings does not apply to ancillary probate of...