Colorado § 15-12-808 - Individual liability of personal representative.

§ 15-12-808. Individual liability of personal representative.

(1) Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.

(2) A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.

(3) Claims based on contracts entered into by a personal representative in his fiduciary capacity on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.

(4) Issues of liability as between the estate and the personal representative individually may be determined:

(a) In a proceeding pursuant to section 15-10-504;

(b) In a proceeding for accounting, surcharge, indemnification, sanctions, or removal; or

(c) In other appropriate proceedings.

(5) A personal representative is not individually liable for making distributions that do not take into consideration the possible birth of a posthumously conceived child if the personal representative made the distribution prior to:

(a) Receiving notice or acquiring actual knowledge of the existence of an intention to use an individual's genetic material to create a child; and

(b) The birth of the child could affect the distribution of the decedent's estate.

(6) If a personal representative has reviewed the records of the county clerk and recorder in every county in Colorado in which the personal representative has actual knowledge that the decedent was domiciled at any time during the three years prior to the decedent's death and the personal representative does not have actual notice or actual knowledge of the existence of a valid, unrevoked designated beneficiary agreement in which the decedent granted the right of intestate succession, the personal representative shall not be individually liable for distributions made to devisees or heirs at law that do not take into consideration the designated beneficiary agreement.

Source: L. 73: R&RE, p. 1595, § 1. C.R.S. 1963: § 153-3-808. L. 2008: (4) amended, p. 484, § 8, effective July 1. L. 2010: (5) added, (SB 10-199), ch. 374, p. 1752, § 16, effective July 1. L. 2011: IP(5) and (5)(a) amended, (SB 11-083), ch. 101, p. 304, § 8, effective August 10. L. 2012: (6) added, (SB 12-131), ch. 114, p. 393, § 2, effective April 13.

Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101.

COMMENT

In the absence of statute an executor, administrator or a trustee is personally liable on contracts entered into in his fiduciary capacity unless he expressly excludes personal liability in the contract. He is commonly personally liable for obligations stemming from ownership or possession of the property (e.g., taxes) and for torts committed by servants employed in the management of the property. The claimant ordinarily can reach the estate only after exhausting his remedies against the fiduciary as an individual and then only to the extent that the fiduciary is entitled to indemnity from the property. This and the following sections are designed to make the estate a quasi-corporation for purposes of such liabilities. The personal representative would be personally liable only if an agent for a corporation would be under the same circumstances, and the claimant has a direct remedy against the quasi-corporate property.

ANNOTATION

Bank, acting as personal representative for a particular decedent, may not be held liable in an individual capacity for tortious interference with a contract which entitled a surviving partner to purchase partnership interest held by such decedent at the time of death. Colo. Nat. Bank v. Friedman, 846 P.2d 159 (Colo. 1993).