FORMAL TESTACY AND APPOINTMENT PROCEEDINGS
| Jurisdiction | Colorado |
Law reviews: For article, "Will Contests -- Some Procedural Aspects", see 15 Colo. Law. 787 (1986).
■ 15-12-401. Formal testacy proceedings - nature - when commenced. (1) A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing a petition as described in section 15-12-402 (1) in which he requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, or a petition in accordance with section 15-12-402 (4) for an order that the decedent died intestate.
(2) A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.
(3) During the pendency of a formal testacy proceeding, the registrar shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent.
(4) Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of his office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.
Source: L. 73: R&RE, p. 1573, § 1. C.R.S. 1963: § 153-3-401.
Law reviews. For article, "Recent Statutes", see 4 Den. B. Ass'n Rec. 11 (1927). For article, "In Re: The Mourners", see 6 Dicta 7 (1929). For note, "A Survey of the Colorado Torrens Act", see 5 Rocky Mt. L. Rev. 149 (1933). For article, "How Many Times", see 19 Dicta 231 (1942). For article, "Again -- How Many Times?", see 21 Dicta 62 (1944). For article, "Colorado Bar Association Meeting", see 23 Dicta 261 (1946). For article, "The Inventory and Final Report", see 27 Dicta 291 (1950). For article, "Practical Problems of Evidence in Real Estate Titles", see 24 Rocky Mt. L. Rev. 430 (1952). For article, "Administration of Intestate Estates", see 29 Rocky Mt. L. Rev. 571 (1957). For article, "Court Proceedings Relating to Real Estate Titles", see 35 U. Colo. L. Rev. 65 (1962). For article, "A Potpourri of Probate Practice Aids", see 11 Colo. Law. 1850 (1982).
Annotator's note. Cases relevant to § 15-12-401 decided prior to its earliest source, § 153-3-401, C.R.S. 1963, have been included in the annotations to this section.
The purpose of a proceeding to contest a will is to divest the legatees and devisees of rights in the estate of the testator and to vest the property in his heirs at law or in the beneficiaries named in another will. Unless the contestant will take or may take by an adjudication that the will in question is invalid he has not sufficient interest to give him legal standing to contest its validity. In re Stoiber's Estate, 101 Colo. 192, 72 P.2d 276 (1937).
The right to contest the validity of a probate may be exercised by any person whose interests are affected by the will so established, whether such will be domestic or foreign. Foster v. Kragh, 107 Colo. 389, 113 P.2d 666 (1941).
A petition objecting to informal probate and commencing formal probate proceedings is subject to dismissal under C.R.C.P. 12(b)(5). Section 15-12-403's requirement that the court "fix a time and place of hearing" on every petition does not prohibit application of C.R.C.P. 12(b)(5). In re Estate of Everhart, 2021 COA 63, 493 P.3d 272.
A guardian ad litem appointed to represent persons under legal disability in an estate matter is not an aggrieved person, and has no standing to prosecute a writ of error to the supreme court from a decree of heirship entered in the probate court finding a named person to be the sole and only heir at law of the deceased. Miller v. Clark, 144 Colo. 431, 356 P.2d 965 (1960).
Likewise, a wife has no standing to contest the will of her deceased husband where the husband and wife entered into a separation agreement, and following its execution no claim of duress, overreaching, fraud, coercion, or complaint of any nature regarding the property settlement is made until after the death of the husband, during which time the wife kept possession of the assets acquired under the agreement. Thomas v. Eaton, 138 Colo. 512, 335 P.2d 270 (1959).
Applied in In re Estate of Dandrea, 40 Colo. App. 547, 577 P.2d 1112 (1978); Ayres v. King, 665 P.2d 594 (Colo. 1983).
■ 15-12-402. Formal testacy or appointment proceedings - petition - contents. (1) [Editor's note: This version of the introductory portion to (1) is effective until January 1, 2023.] Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will shall:
(1) [Editor's note: This version of the introductory portion to (1) is effective January 1, 2023.] Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will must:
(a) Request an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs;
(b) Contain the statements required for informal applications as stated in section 15-12-301 (2) and the statements required by section 15-12-301 (3); and
(c) [Editor's note: This version of this subsection (1)(c) is effective until January 1, 2023.] State whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
(c) [Editor's note: This version of this subsection (1)(c) is effective January 1, 2023.] State whether the original of the last will of the decedent, or a copy of the decedent's original will certified by the state court administrator pursuant to article 23 of this title 15, is in the possession of the court or accompanies the petition.
(2) [Editor's note: This version of this subsection (2) is effective until January 1, 2023.] If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable.
(2) [Editor's note: This version of this subsection (2) is effective January 1, 2023.] If the original will, or a copy of the decedent's original will certified by the state court administrator pursuant to article 23 of this title 15, is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable.
(3) If a will has been lost or destroyed, or for any other reason is unavailable, and the fact of the execution thereof is established, as herein provided, and the contents thereof are likewise established to the satisfaction of the court, and the court is satisfied that the will has not been revoked by the testator, the court may admit the same to probate and record, as in other cases. In every such case the order admitting such will to probate shall set forth the contents of the will at length, and the names of the witnesses by whom the same was proved, and such order shall be recorded in the record of wills.
(4) A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by section 15-12-301 (2) and (5), and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case the statements required by section 15-12-301 (5)(b) may be omitted.
Source: L. 73: R&RE, p. 1574, § 1. C.R.S. 1963: § 153-3-402. L. 79: (3) amended, p. 649, § 8, effective July 1. L. 2019: IP(1), (1)(c), and (2) amended, (HB 19-1229), ch. 252, p. 2446, § 4, effective January 1, 2023.
Editor's note: HB 20-1368 amended the effective date of HB 19-1229 to change the date from January 1, 2021, to January 1, 2023. (See L. 2020, p. 1441.)
Law reviews. For article, "Trusts and Estates", see 30 Dicta 435 (1953). For article, "Evidence in Estate Proceedings", see 24 Rocky Mt. L. Rev. 437 (1952). For article, "A Potpourri of Probate Practice Aids", see 11 Colo. Law. 1850 (1982).
Annotator's note. Since § 15-12-402 is similar to repealed § 153-5-28, C.R.S. 1963, § 152-5-29, CRS 53, CSA, C. 176, § 57, and laws antecedent thereto, relevant cases construing those provisions have been included in the...
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