June 14, 2019

2015 Probate Cost of Living Numbers Now Available

The Colorado Department of Revenue released the 2015 indexed amounts with cost of living adjustments as required by C.R.S. § 15-10-112. The cost of living adjustments affect the amount of share of intestate estate for surviving spouses, supplemental elective share, exempt property allowance, lump sum family allowance, and small estate limit. These numbers should be used for the estates of decedents dying in 2015.

2015 Probate COLA Numbers

HB 14-1322: Making Changes to Colorado Probate Code Regarding Control and Distribution of Assets

On March 18, 2014, Rep. Mike McLaughlin and Sen. Ellen Roberts introduced HB 14-1322 – Concerning the Colorado Probate Code. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals and reenacts, with amendments, certain provisions relating to the elective-share of a surviving spouse.

A specific devisee has a right to specifically devised property in a testator’s estate at death and, in the absence of other statutorily described property and moneys, a general pecuniary devise equal to the value, as of its date of disposition, of other specifically devised property disposed of during the testator’s lifetime, but only to the extent it is established that ademption would be inconsistent with the testator’s manifested plan of distribution or that the testator did not intend ademption of the devise.

To be effective to nominate a personal representative, a will must be declared valid by an order of informal probate by the registrar or by the court.

Under current law, a successor of a decedent may collect from another person any debts owed to the decedent and any personal property belonging to the decedent if the fair market value of the property owned by the decedent at the time of his or her death does not exceed $60,000. Under the bill, this amount may not exceed twice the value of property that the decedent’s surviving spouse is entitled to exempt from the estate, as adjusted for cost of living.

An instrument or other property that is payable or deliverable to a decedent or to the estate of a decedent is considered property of the decedent. A successor of the decedent or a person acting on behalf of a successor may endorse an instrument that is so payable and collect such amount.

The duties owed to a successor by a person acting on behalf of the successor in the making, presentation, or other use of an affidavit to collect personal property of a decedent are the same as the duties of an agent to the agent’s principal. The breach of this duty is subject to the same remedies as are available under the law with respect to an agent.

If a proof of right is established in a proceeding, any person to whom an affidavit was delivered and who refused, without reasonable cause, to pay, deliver, transfer, or issue any personal property or evidence thereof shall be liable for all costs, including reasonable attorneys’ fees and costs, incurred by or on behalf of the persons entitled thereto.

A provision in a trust specifying a method to revoke or amend the trust does not make the specified method exclusive unless the method is referred to as the “sole”, “exclusive”, or “only” method of revoking or amending the trust or the provision includes similar language manifesting the settlor’s intent that the trust may not be revoked or amended by any other method.

The bill sets forth certain duties and powers of trustees and trust advisors.

This bill is CBA sponsored and was developed by the Trusts and Estates Section of the Bar Association.

The bill passed out of the House on April 14. It is assigned to the Judiciary Committee; a committee hearing is scheduled for Wednesday, April 21 at 1:30 p.m.

SB 13-077: Amending Certain Provisions of the Colorado Probate Code

On Tuesday, January 22, 2013, Sen. Ellen Roberts introduced SB 13-077 – Concerning Certain Provisions of the Colorado Probate Code.  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies provisions concerning the circumstances under which each party and person in interest with a party shall be allowed to testify regarding an oral statement of a person incapable of testifying when such statement is sought to be admitted into evidence.

The bill clarifies that, subject to certain limitations, a personal representative, a person with priority for appointment as personal representative, and a court-appointed fiduciary:

  • May ascertain the testator’s probable intent or estate planning purpose on issues involving the decedent’s estate; and
  • Shall have standing to prosecute or defend that intent or purpose, at the expense of the estate, in probate proceedings.

Under current law, a personal representative must give certain information concerning his or her appointment to the heirs and devisees of the estate not later than 30 days after his or her appointment. The bill adds a requirement that this information must include a notice that any individual who has knowledge that there is a valid, unrevoked designated beneficiary agreement in which the decedent granted the right of intestate succession should give written notice of such knowledge to the personal representative of the decedent’s estate. The bill also makes changes to this law to align it with a provision of the Colorado rules of probate procedure.

The bill amends the probate code to grant a higher statutory priority to payment of child support claims in decedent’s estates. The bill gives a trustee of an intentionally defective grantor trust the discretionary authority to reimburse the grantor for payment of the income taxes attributable to the trust. This authority does not subject the trust to the grantor’s creditors or cause the trust to be included in the grantor’s estate.

The bill allows a trustee to acquire or retain a life insurance policy on the life of a person for whom the trustee has an insurable interest as a trust asset; however, a trust may expressly provide that this provision does not apply to the trust. A trustee is not relieved of liability with respect to any life insurance policy purchased from an affiliated company, or with respect to which the trustee or any affiliated company of the trustee receives any commission, unless either:

  • The trustee has given written notice of such intended purchase to all qualified beneficiaries of the trust or their legal representatives, and receives written consent to such purchase; or
  • The trust agreement contains a provision that permits purchases of life insurance from an affiliate; however, consent shall be conclusively presumed by any qualified beneficiary who has not responded to written notice by the trustee within 30 days after the mailing of such notice to the qualified beneficiary at his or her last known address.

The bill clarifies the applicability of the effective date of the Colorado probate code to conform Colorado law to the Uniform Probate Code’s effective date provisions. The bill is assigned to the Judiciary Committee; the committee will take the bill up on Wednesday, Feb. 13 at 1:30 p.m.