On February 18, 2016, Sens. Jack Tate & Michael Johnston and Reps. Dan Pabon & Yeulin Willett introduced SB 16-133 – Concerning the Transfer of Property Rights upon the Death of a Person, and, in Connection Therewith, Clarifying Determination-Of-Heirship Proceedings in Probate. The bill was introduced into the Senate Judiciary Committee, where it was amended. It passed through the Senate with amendments on Second Reading and passed through the House without further amendments. It is now awaiting the governor’s signature.
Under current law, a certificate of death, a verification of death document, or a certified copy thereof, of a person who is a joint tenant may be placed of record with the county clerk and recorder of the county in which the real property affected by the joint tenancy is located, together with a supplementary affidavit. First, this bill removes the requirement that the person who swears to and affirms the supplementary affidavit has no record interest in the real property, while requiring that the supplementary affidavit include a statement that the person referred to in the certificate is the same person who is named in a specific recorded deed or similar instrument creating the joint tenancy.
Second, this bill amends provisions concerning determination-of-heirship proceedings, as follows:
- Amends the definition of “interested person” to mean an owner by descent or succession so that anyone affected by the ownership of property may commence a proceeding;
- Requires the petition to contain additional information with respect to the property at issue, each decedent, any previous administration of the decedent’s property, and any unknown interested person;
- Imposes additional requirements upon a petition if the decedent died testate, depending on whether the decedent’s will has or has not been previously admitted to probate, and if the will has not been probated, the petition must contain a statement that the original will is unavailable;
- Requires a petitioner’s notice to identify the petition, and include the name of the each decedent, the name of each interested party, a legal description of any real property, the time and place of the hearing on the petition, and that any objection to the petition must be filed in writing with the court on or before the hearing date and served upon the petitioner; notice shall also be published once a week for three consecutive weeks in a newspaper of general circulation in the county in which the proceeding was filing, and in the county in which the real property at issue is located;
- Requires upon the entry of a decree affecting title to real property, a certified copy of the decree must be recorded and indexed in the office of the county clerk and recorder of each county in which real property is located, as if it were a deed of conveyance from the decedent; and
- Establishes that the admission of a previously unprobated will applies only to the decedent’s particular property interest described in the petition.
Third, this bill enacts portions of section 5 of the “Uniform Power of Appointment Act,” with amendments.
Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.