New Probate Rule 24: Balancing Efficiency and Due Process, 0219 COBJ, Vol. 48, No. 2 Pg. 42

Author:by Michael Holder
Position:Vol. 48, 2 [Page 42]
 
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48 Colo.Law. 42

New Probate Rule 24: Balancing Efficiency and Due Process

Vol. 48, No. 2 [Page 42]

The Colorado Lawyer

February, 2019

by Michael Holder

This article reviews the development of Colorado Rule of Probate Procedure 24.

The Uniform Probate Code was initially proposed to address concerns that under prior law, probate of decedents’ estates was too slow and costly, and there was little need for formal judicial review and management of what amounted to a predominantly administrative task. The complexity of the somewhat antiquated prior probate law, which could thwart the decedents’ intent to provide for their dependents, and the delay and expense of petitioning the court for allowances for survivors’ needs were seen as significant impediments to probate administration.

In response, alternative methods to probate became popular, such as the use of joint tenancy and trusts. These alternatives were encouraged by books such as How to Avoid Probate.1 While vilified by attorneys and others who viewed this book’s author as practicing law without a license,2 the book’s popularity exemplified the public’s dissatisfaction with then existing probate procedures.

This article takes a brief look at how the Colorado Uniform Probate Code and non-appearance hearings evolved to address these concerns.

The Colorado Uniform Probate Code

The Colorado Uniform Probate Code3 was adopted in response to the dissatisfaction with the prior probate code. Its underlying purposes include clarifying and simplifying the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons; discovering and making effective the decedent’s intent in his or her property distribution; and promoting a speedy and efficient system for liquidating decedents’ estates, making distributions to successors, and managing and protecting the estates of protected persons.[4]

The method chosen by the drafters of the Uniform Probate Code, which was adopted in Colorado in 1973,5 was to minimize judicial intervention and make probate proceedings more administrative in nature.6 Thus, today a personal representative may be granted the authority to deal with the assets of a decedent through issuance of Letters by the Registrar, without the need for review by a judge or magistrate.7 “Interested persons”8 are given the initial responsibility for protecting their own interests, and they may request appropriate court action to control or remedy the actions of fiduciaries.9

While there are specific instances when the Uniform Probate Code and the mandates of procedural due process[10] require notice and an opportunity to be heard,11 sometimes procedural due process may be provided without the need for a hearing in open court with some or all of the interested persons physically present. For example, there is no constitutional infirmity in a trial court acting on a motion without oral argument, even if it is a dispositive motion, such as a motion for summary judgment.12 This was recognized in the promulgation of former Colorado Rule of Probate Procedure (CRPP) 8.8, which provided for “Non-Appearance Hearings.”

Non-Appearance Hearings

CRPP 8.8 was aimed at routine matters. In practice, the rule was somewhat confusing and practitioners occasionally improperly invoked it. The rule required that nonappearance hearings could be used only for matters that were “routine and . . . expected to be unopposed,”13 and provided for notice to be given to interested persons establishing a time limit in which to object. However, the rule also provided that once w objection was interposed, the objector’s failure to set the matter for an appearance hearing within a specified period of time would necessarily result in dismissal of the objection with prejudice and without further hearing.14 Although not provided for under a strict reading of the rule, the mandatory dismissal of the objection with prejudice led to a belief that if an objection were interposed and the matter was not set for an appearance hearing within the requisite time period, the requested relief must be granted. From there it was not a far leap to the belief that if no objection were interposed to the relief requested and set for an appearance hearing, the relief must be granted, even though the former rule stated that if no objection were fled, the court could take action on the motion or petition without further notice or hearing.15

On September 1, 2018, former Rule 8.8 was replaced with CRPP 24, which makes it clear that the court retains, in all instances, the power consistent with its obligation to provide for ultimate justice. Rule 24 continues to provide for fling a request for a judicial determination and notice of a time period in which objections must be fled, but does away with the former Rule 8.8 requirement...

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