Colorado § 15-12-401 - Formal testacy proceedings - nature - when commenced.

§ 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.

ANNOTATION

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).