DUTIES AND POWERS OF PERSONAL REPRESENTATIVES
| Jurisdiction | Colorado |
Law reviews: For article, "Choosing a Fiduciary", see 15 Colo. Law. 203 (1986); for article, "Ethical Problem Areas for Probate Lawyers", see 19 Colo. Law. 1069 (1990); for article, "Who's on First - The Client in Estate Administration", see 22 Colo. Law. 2393 (1993); for article, "A Personal Representative's Right to Participate in a Will Contest", see 33 Colo. Law. 57 (April 2004).
■ 15-12-701. Time of accrual of duties and powers. The duties and powers of a personal representative commence upon his or her appointment. The powers of a personal representative relate back in time to give acts by the person appointed that are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person nominated to serve as personal representative in a will may carry out written instructions of the decedent or of the persons designated to control disposition of the decedent's last remains under section 15-19-106, relating to his or her body, anatomical gifts, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
Source: L. 73: R&RE, p. 1587, § 1. C.R.S. 1963: § 153-3-701. L. 2003: Entire section amended, p. 1355, § 3, effective August 6.
Law reviews. For article, "Practical Administrative Problems in Average-Sized Estates", see 27 Dicta 285 (1950). For article, "Testamentary Disposition of a Decedent's Body", see 18 Colo. Law. 435 (1989).
Annotator's note. Since § 15-12-701 is similar to repealed laws antecedent to CSA, C. 176, § 113, relevant cases construing those provisions have been included in the annotations to this section.
Even before probate of the will, the executor may employ an attorney to aid in securing moneys pertaining to the estate. In re Macky's Estate, 68 Colo. 556, 191 P. 106 (1920).
Prior to appointment as personal representative, a suit may not be maintained against executor. Stratton's Independence, Ltd. v. Dines, 126 F. 968 (D. Colo. 1904).
Absent an appointment, a designee for personal representative has limited powers and duties. Such powers and duties extend no further than the limited tasks described in this section. Estate of Rienks v. Rienks, 844 P.2d 1295 (Colo. App. 1992).
If no personal representative has ever been appointed, the "relation back" authority is insufficient to authorize a mere designee to accept presentment pursuant to § 15-12-804 (1). Estate of Rienks v. Rienks, 844 P.2d 1295 (Colo. App. 1992).
Better price available does not negate benefit to estate. The fact that a better price could have been obtained for the decedent's real property does not, under this section, negate the actual benefit to the estate resulting from decedent's son, prior to his appointment as personal representative, accepting payment from an option holder for purchase of the property. Brown v. Brown, 43 Colo. App. 535, 608 P.2d 840 (1980).
■ 15-12-702. Priority among different letters. A person to whom general letters are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters are afterwards issued to another, the first appointed representative may recover any property of the estate in the hands of the representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
Source: L. 73: R&RE, p. 1587, § 1. C.R.S. 1963: § 153-3-702.
■ 15-12-703. General duties - relation and liability to persons interested in estate - duty to search for a designated beneficiary agreement - standing to sue. (1) A personal representative is a fiduciary who shall observe the standards of care applicable to trustees as described by part 8 of article 5 of this title 15. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this code, and as expeditiously and efficiently as is consistent with the best interests of the estate. The personal representative shall use the authority conferred by this code, the terms of the will, if any, and any order in proceedings to which the personal representative is party for the best interests of successors to the estate.
(2) A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning the personal representative's appointment or fitness to continue, or a supervised administration proceeding. This section does not affect the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants whose claims have been allowed, the surviving spouse, any minor and dependent children, and any omitted child of the decedent as described elsewhere in this code.
(3) Repealed.
(3.5) A personal representative shall not be surcharged for distributions made that do not take into consideration the possible birth of a posthumously conceived child unless prior to such distribution:
(a) The personal representative has received notice or has actual knowledge that there is an intention to use an individual's genetic material to create a child or has received written notice that there may be an intention to use an individual's genetic material to create a child; and
(b) The birth of the child could affect the distribution of the decedent's estate.
(4) Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this state at death has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as the decedent had immediately prior to death.
(5) A personal representative shall not be surcharged for distributions made that do not take into consideration a designated beneficiary agreement if:
(a) The personal representative has reviewed the records of the county clerk and recorder's office in every county in Colorado in which the personal representative has actual knowledge that the decedent was domiciled at any time during the three years prior to the decedent's death for a valid, unrevoked designated beneficiary agreement in which the decedent granted the right of intestate succession; and
(b) The personal representative has not received actual notice nor has actual knowledge of the existence of a valid, unrevoked designated beneficiary agreement in which the decedent granted the right of intestate succession.
(6) Subject to the good faith standard of section 15-10-602 (6), the provisions of section 15-10-605, and subsections (7) and (8) of this section, personal representatives, persons with priority for appointment as personal representative, and court-appointed fiduciaries may ascertain the testator's probable intent or estate planning purpose on issues involving the decedent's estate and, where not contrary to public policy or law, shall have standing and may prosecute or defend that intent or purpose, at the expense of the estate, in proceedings brought under this code.
(7) Without limiting the general applicability of subsection (6) of this section:
(a)(I) A person serving as personal representative or a person nominated as personal representative in a will or appointed as public or special administrator has standing, but no duty, to offer a will for probate. If such person declines or is unable to offer the will for probate, any person who is a successor of the decedent under the will may offer the will for probate and defend the validity of the will in proceedings under this code. In either case, the person may act notwithstanding the fact that he or she may be a devisee under the will. The will proponent's reasonable fees and costs are payable as an expense of administration.
(II) For purposes of this subsection (7), a proponent other than the nominated personal representative should be treated as a nominated personal representative in cases where the nominated personal representative has declined or is unable to offer the will for probate. Such treatment shall not confer upon the proponent a higher priority for appointment than was conferred upon such proponent pursuant to section 15-12-203 before the will was offered for probate.
(b) The personal representative has standing to oppose, at estate expense, a person's claim to be an heir; an omitted spouse or child; a spouse, including a common law spouse; or a devisee.
(c) The personal representative has standing to oppose, at estate expense, a surviving spouse's attempt to invalidate a marital agreement that limits his or her share in the estate.
(d) Where a surviving spouse petitions for an elective share, the court proceeding is an action between the spouse and the interested person or persons whose interests may be affected, and the personal representative is a neutral party to the proceeding. In such a proceeding, the fees and costs reasonably incurred by the personal representative and his or her agents in providing basic information to the parties regarding the augmented estate are payable as an estate expense. The personal representative may prepare a calculation of the augmented estate at estate expense.
(8)(a)...
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