2019 Colorado Revised Statutes
Title 15 - Probate, Trusts, and Fiduciaries


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Colorado Revised Statutes 2019 TITLE 15 PROBATE, TRUSTS, AND FIDUCIARIES FIDUCIARY ARTICLE 1 Fiduciary Cross references: For bank and trust company fiduciaries and common trust funds, see articles 24 and 101 to 109 of title 11; for legal investments, see part 6 of article 75 of title 24 and article 60 of title 11; for investment of police officers' and firefighters' pension funds, see article 30.5 of title 31; for investments by veterans administration fiduciaries, see § 28-5-301; for investment by custodians under the "Colorado Uniform Transfers to Minors Act", see § 11-50113; for abolition of the rule against perpetuities in cases of cemetery trust and employee pension trust, see §§ 38-30-110 to 38-30-112. PART 1 GENERAL PROVISIONS 15-1-101. Short title. This part 1 shall be known and may be cited as the "Uniform Fiduciaries Law". Source: L. 23: p. 178, § 14. CSA: C. 67, § 14. CRS 53: § 57-1-14. C.R.S. 1963: § 57-113. 15-1-102. Legislative declaration. This part 1 shall be interpreted and construed so as to effectuate its general purpose to make uniform the law of those states which enact it. Source: L. 23: p. 178, § 13. CSA: C. 67, § 13. CRS 53: § 57-1-13. C.R.S. 1963: § 57-112. 15-1-103. Definitions. As used in this part 1, unless the context otherwise requires: (1) "Bank" includes any person or association of persons, whether incorporated or not, carrying on the business of banking. (2) "Fiduciary" includes a trustee under any trust, expressed, implied, resulting, or constructive, executor, administrator, personal representative, guardian, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent, officer of a Colorado Revised Statutes 2019 Page 1 of 600 Uncertified Printout corporation, public or private, public officer, or any other person acting in a fiduciary capacity for any person, trust, or estate. (3) "Person" includes a corporation, partnership, or other association, or two or more persons having a joint or common interest. (4) "Principal" includes any person to whom a fiduciary as such owes an obligation. Source: L. 23: p. 173, § 1. CSA: C. 67, § 1. CRS 53: § 57-1-1. C.R.S. 1963: § 57-1-1. L. 2002: (2) amended, p. 650, § 1, effective July 1. 15-1-104. Prior transactions. The provisions of this part 1 shall not apply to transactions taking place prior to April 16, 1923. Source: L. 23: p. 178, § 11. CSA: C. 67, § 11. CRS 53: § 57-1-11. C.R.S. 1963: § 57-110. 15-1-105. Application of payments to fiduciary. A person who in good faith pays or transfers to a fiduciary any money or other property which the fiduciary as such is authorized to receive is not responsible for the proper application thereof by the fiduciary; and any right or title acquired from the fiduciary in consideration of such payment or transfer is not invalid in consequence of a misapplication by the fiduciary. Source: L. 23: p. 174, § 2. CSA: C. 67, § 2. CRS 53: § 57-1-2. C.R.S. 1963: § 57-1-2. 15-1-106. Transfer of negotiable instruments by fiduciary. If any negotiable instrument payable or indorsed to a fiduciary as such is indorsed by the fiduciary, or if any negotiable instrument payable or indorsed to his principal is indorsed by a fiduciary empowered to indorse such instrument on behalf of his principal, the indorsee is not bound to inquire whether the fiduciary is committing a breach of his obligation as fiduciary in indorsing or delivering the instrument and is not chargeable with notice that the fiduciary is committing a breach of his obligation as fiduciary unless he takes the instrument with actual knowledge of such breach or with knowledge of such facts that his action in taking the instrument amounts to bad faith. If, however, such instrument is transferred by the fiduciary in payment of or as security for a personal debt of the fiduciary to the actual knowledge of the creditor or is transferred in any transaction known by the transferee to be for the personal benefit of the fiduciary, the creditor or other transferee is liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in transferring the instrument. Source: L. 23: p. 174, § 4. CSA: C. 67, § 4. CRS 53: § 57-1-4. C.R.S. 1963: § 57-1-3. 15-1-107. Check drawn by fiduciary payable to third person, effect. If a check or other bill of exchange is drawn by a fiduciary as such or in the name of his principal by a fiduciary empowered to draw such instrument in the name of his principal, the payee is not bound to inquire whether the fiduciary is committing a breach of his obligations as fiduciary in drawing or delivering the instrument and is not chargeable with notice that the fiduciary is committing a breach of his obligation as fiduciary unless he takes the instrument with actual Colorado Revised Statutes 2019 Page 2 of 600 Uncertified Printout knowledge of such breach or with knowledge of such facts that his action in taking the instrument amounts to bad faith. If, however, such instrument is payable to a personal creditor of the fiduciary and delivered to the creditor in payment of or as security for a personal debt of the fiduciary to the actual knowledge of the creditor or is drawn and delivered in any transaction known by the payee to be for the personal benefit of the fiduciary, the creditor or other payee is liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in drawing or delivering the instrument. Source: L. 23: p. 175, § 5. CSA: C. 67, § 5. CRS 53: § 57-1-5. C.R.S. 1963: § 57-1-4. 15-1-108. Check drawn by and payable to fiduciary, effect. If a check or other bill of exchange is drawn by a fiduciary as such or in the name of his principal by a fiduciary empowered to draw such instrument in the name of his principal, payable to the fiduciary personally or payable to a third person and by him transferred to the fiduciary, and is thereafter transferred by the fiduciary, whether in payment of a personal debt of the fiduciary or otherwise, the transferee is not bound to inquire whether the fiduciary is committing a breach of his obligation as fiduciary in transferring the instrument and is not chargeable with notice that the fiduciary is committing a breach of his obligation as fiduciary unless he takes the instrument with actual knowledge of such breach or with knowledge of such facts that his action in taking the instrument amounts to bad faith. Source: L. 23: p. 175, § 6. CSA: C. 67, § 6. CRS 53: § 57-1-6. C.R.S. 1963: § 57-1-5. 15-1-109. Deposit in name of fiduciary. If a deposit is made in a bank to the credit of a fiduciary as such, the bank is authorized to pay the amount of the deposit or any part thereof upon the check of the fiduciary, signed with the name in which such deposit is entered, without being liable to the principal, unless the bank pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in drawing the check or with knowledge of such facts that its action in paying the check amounts to bad faith. If, however, such a check is payable to the drawee bank and is delivered to it in payment of or as security for a personal debt of the fiduciary to it, the bank is liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in drawing or delivering the check. Source: L. 23: p. 176, § 7. CSA: C. 67, § 7. CRS 53: § 57-1-7. C.R.S. 1963: § 57-1-6. 15-1-110. Check drawn upon account of principal by fiduciary. If a check is drawn upon the account of his principal in a bank by a fiduciary who is empowered to draw checks upon his principal's account, the bank is authorized to pay such check without being liable to the principal, unless the bank pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in drawing such check or with knowledge of such facts that its action in paying the check amounts to bad faith. If, however, such a check is payable to the drawee bank and is delivered to it in payment of or as security for a personal debt of the fiduciary to it, the bank is liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in drawing or delivering the check. Colorado Revised Statutes 2019 Page 3 of 600 Uncertified Printout Source: L. 23: p. 176, § 8. CSA: C. 67, § 8. CRS 53: § 57-1-8. C.R.S. 1963: § 57-1-7. 15-1-111. Deposits in personal account of fiduciary. If a fiduciary makes a deposit in a bank to his personal credit of checks drawn by him upon an account in his own name as fiduciary, or of checks payable to him as fiduciary, or of checks drawn by him upon an account in the name of his principal if he is empowered to draw checks on that account, or of checks payable to his principal and indorsed by him, if he is empowered to indorse such checks or if he otherwise makes a deposit of funds held by him as fiduciary, the bank receiving such deposit is not bound to inquire whether the fiduciary is committing a breach of his obligation as fiduciary by that action; and the bank is authorized to pay the amount of the deposit or any part thereof upon the personal check of the fiduciary without being liable to the principal, unless the bank receives the deposit or pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in making such deposit or in drawing such check or with knowledge of such facts that its action in receiving the deposit or paying the check amounts to bad faith. Source: L. 23: p. 177, § 9. CSA: C. 67, § 9. CRS 53: § 57-1-9. C.R.S. 1963: § 57-1-8. Cross references: For deposits by a fiduciary, see part 5 of this article. 15-1-112. Deposits in name of two or more trustees. When a deposit is made in a bank in the name of two or more persons as trustees and a check is drawn upon the trust account by any trustee authorized by the other trustee to draw checks upon the trust account, neither the payee nor other holder nor the bank is bound to inquire whether it is a breach of trust to authorize such trustee to draw checks upon the trust account and is not liable unless the circumstances be such that the action of the payee or other holder or the bank amounts to bad faith. Source: L. 23: p. 177, § 10. CSA: C. 67, § 10. CRS 53: § 57-1-10. C.R.S. 1963: § 57-19. Cross references: For deposits by a fiduciary, see part 5 of this article. 15-1-112.5. Liability of a fiduciary for acts of predecessor fiduciary. In the absence of actual knowledge or information which would cause a reasonable fiduciary to inquire further, a fiduciary shall be under no duty to examine the accounts and records of or inquire into the acts or omissions of a predecessor fiduciary and shall not be liable for failure to seek redress for any act or omission of any predecessor fiduciary. Source: L. 77: Entire section added, p. 829, § 1, effective July 1. 15-1-113. Cases not provided for in law. In any case not provided for in this part 1, the rules of law and equity, including the law merchant and those rules of law and equity relating to trusts, agency, negotiable instruments, and banking, shall continue to apply. Colorado Revised Statutes 2019 Page 4 of 600 Uncertified Printout Source: L. 23: p. 178, § 12. CSA: C. 67, § 12. CRS 53: § 57-1-12. C.R.S. 1963: § 57-111. PART 2 DISTRIBUTION BY FIDUCIARIES OF EXPRESS TRUSTS 15-1-201. When part 2 applicable. This part 2 shall be applicable to all powers of appointment or disposition existing or created on or after April 1, 1953, the donees of which powers shall be living on such date. Source: L. 53: p. 304, § 6. CRS 53: § 57-2-6. C.R.S. 1963: § 57-2-6. 15-1-201.5. Definitions. As used in this part 2, "donee" has the same meaning as "powerholder" as set forth in section 15-2.5-102 (13). Source: L. 2014: Entire section added, (HB 14-1353), ch. 209, p. 782, § 3, effective July 1, 2015. 15-1-202. Trustee not liable, when. If a trustee of an express trust which includes property subject to a power of appointment or other power of disposition distributes such property to those persons who would take such property in default of appointment and such distribution is made not sooner than six months after the death of the donee of such power and without knowledge of the existence of an instrument exercising such power, he shall not be responsible to the appointee under the instrument exercising such power. Source: L. 53: p. 303, § 1. CRS 53: § 57-2-1. C.R.S. 1963: § 57-2-1. 15-1-203. No liability if distribution under instrument. If a trustee of an express trust which includes property subject to a power of appointment or other power of disposition distributes such property pursuant to an instrument exercising such power and without knowledge of any infirmity in such instrument and thereafter such instrument shall be held wholly or partially invalid, such trustee shall not be responsible to those persons who would take in default of appointment. Source: L. 53: p. 303, § 2. CRS 53: § 57-2-2. C.R.S. 1963: § 57-2-2. 15-1-204. Rights of appointees. Nothing in this part 2 shall be deemed to affect the right of the appointee of such property to trace such property into the hands of the distributee or to affect the cause of action of such appointee against such distributee. Source: L. 53: p. 303, § 3. CRS 53: § 57-2-3. C.R.S. 1963: § 57-2-3. 15-1-205. Rights of persons entitled. Nothing in this part 2 shall be deemed to affect the right of the person entitled to such property in default of appointment to trace such property Colorado Revised Statutes 2019 Page 5 of 600 Uncertified Printout into the hands of the appointee or to affect the cause of action of such person against such distributee. Source: L. 53: p. 303, § 4. CRS 53: § 57-2-4. C.R.S. 1963: § 57-2-4. 15-1-206. Rights of bona fide purchasers. Nothing in this part 2 shall be construed to impair the title or lien of a purchaser or mortgagee in good faith and for value from the person to whom such property was first conveyed pursuant to, or in default of, appointment, as the case may be. Source: L. 53: p. 304, § 5. CRS 53: § 57-2-5. C.R.S. 1963: § 57-2-5. PART 3 FIDUCIARY INVESTMENTS 15-1-301. Fiduciary defined. The word "fiduciary" as used in this part 3 means original or successor administrators, special administrators, administrators cum testamento annexo, executors, guardians, conservators, and trustees, whether of express or implied trusts. Source: L. 51: p. 841, § 5. CSA: C. 176, § 126(9). CRS 53: § 57-3-5. C.R.S. 1963: § 57-3-5. 15-1-302. Application. The provisions of this part 3 shall apply to and govern all fiduciaries appointed or lawfully acting. Source: L. 51: p. 841, § 3. CSA: C. 176, § 126(7). CRS 53: § 57-3-3. C.R.S. 1963: § 57-3-4. 15-1-303. Construction of part 3. Nothing in this part 3 shall be construed as modifying or repealing either section 28-5-214 or section 28-5-301, C.R.S., with respect to investment of surplus funds by appointed guardians and conservators of minor and incompetent beneficiaries of the veterans administration. Source: L. 51: p. 841, § 6. CSA: C. 176, § 126(10). CRS 53: § 57-3-6. C.R.S. 1963: § 57-3-6. 15-1-304. Standard for investments. In acquiring, investing, reinvesting, exchanging, retaining, selling, and managing property for the benefit of others, fiduciaries shall be required to have in mind the responsibilities which are attached to such offices and the size, nature, and needs of the estates entrusted to their care and shall exercise the judgment and care, under the circumstances then prevailing, which men of prudence, discretion, and intelligence exercise in the management of the property of another, not in regard to speculation but in regard to the permanent disposition of funds, considering the probable income as well as the probable safety of capital. Within the limitations of the foregoing standard, fiduciaries are authorized to acquire Colorado Revised Statutes 2019 Page 6 of 600 Uncertified Printout and retain every kind of property, real, personal, and mixed, and every kind of investment, specifically including, but not by way of limitation, bonds, debentures, and other corporate obligations, stocks, preferred or common, securities of any open-end or closed-end management type investment company or investment trust, and participations in common trust funds, which men of prudence, discretion, and intelligence would acquire or retain for the account of another. Source: L. 51: p. 840, § 1. CSA: C. 176, § 126(5). CRS 53: § 57-3-1. C.R.S. 1963: § 57-3-1. L. 75: Entire section amended, p. 588, § 6, effective July 1. Cross references: For investments by custodians under the "Colorado Uniform Transfers to Minors Act", see § 11-50-113; for legal investments, see part 6 of article 75 of title 24; for investments of police and fire pension funds, see § 31-31-302. 15-1-304.1. Standard for investments on and after July 1, 1995 - "Colorado Uniform Prudent Investor Act". (1) On and after July 1, 1995, when investing and managing assets, fiduciaries shall be governed by the standard for trustees set forth in the "Colorado Uniform Prudent Investor Act", article 1.1 of this title. (2) This section shall not apply to those persons, corporations, entities, or state agencies which were made subject to the provisions of section 15-1-304 by specific reference in another statute in existence prior to July 1, 1995. Source: L. 95: Entire section added, p. 312, § 2, effective July 1. 15-1-305. Terms of instrument govern. Nothing in this part 3 shall be construed as authorizing any departure from or variation of the express terms or limitations set forth in any will, agreement, court order, or other instrument creating or defining the fiduciary's duties and powers, but the terms "legal investment" or "authorized investment", or words of similar import as used in any such instrument, shall be taken to mean any investment which is permitted by the terms of section 15-1-304. Source: L. 51: p. 840, § 2. CSA: C. 176, § 126(6). CRS 53: § 57-3-2. C.R.S. 1963: § 57-3-2. 15-1-306. Court not restricted. Nothing in this part 3 shall be construed as restricting the power of a court of proper jurisdiction to permit a fiduciary to deviate from the terms of any will, agreement, or other instrument relating to the acquisition, investment, reinvestment, exchange, retention, sale, or management of estate or trust property. Source: L. 51: p. 841, § 3. CSA: C. 176, § 126(7). CRS 53: § 57-3-3. C.R.S. 1963: § 57-3-3. 15-1-307. Powers of investment in persons other than fiduciary. (Repealed) Source: L. 77: Entire section added, p. 829, § 2, effective July 1. L. 2014: Entire section repealed, (HB 14-1322), ch. 296, p. 1239, § 11, effective August 6. Colorado Revised Statutes 2019 Page 7 of 600 Uncertified Printout 15-1-308. Investments in United States government obligations. In the absence of an express provision to the contrary, any fiduciary is authorized, whenever a governing instrument or order requires or permits investment in United States government obligations which are backed by the full faith and credit of the United States government, to invest in such obligations, either directly or in the form of the securities of or other interests in any open-end or closed-end management type investment company or investment trust registered under the federal "Investment Company Act of 1940", 15 U.S.C. sec. 80(a)-1 et seq., if the portfolio of such investment company or investment trust is limited to United States government obligations which are backed by the full faith and credit of the United States government and to repurchase agreements fully collateralized by such obligations and if any such investment company or investment trust actually takes delivery of such collateral, either directly or through an authorized custodian. Source: L. 88: Entire section added, p. 645, § 1, effective April 6. PART 4 UNIFORM PRINCIPAL AND INCOME ACT SUBPART 1 DEFINITIONS AND FIDUCIARY DUTIES Editor's note: (1) The National Conference of Commissioners on Uniform State Laws organized the Uniform Principal and Income Act (1997) into six separate articles. In C.R.S., all six articles are combined into this part 4. References in the OFFICIAL COMMENTS to specific sections have been changed to reflect the appropriate C.R.S. citation. References in the OFFICIAL COMMENTS to the 1931 Uniform Act and the 1962 Uniform Act refer to the 1931 Uniform Principal and Income Act and to the 1962 Revised Uniform Principal and Income Act, respectively. References in the OFFICIAL COMMENTS to this act refer to the Uniform Principal and Income Act (1997) contained in this part 4. (2) This part 4 was numbered as article 4 of chapter 57, C.R.S. 1963. The substantive provisions of this part 4 were repealed and reenacted in 2000, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this part 4 prior to 2000, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. Cross references: For information concerning the effective date of this subpart 1, see § 15-1-434. Law reviews: For article, "Highlights of the 1955 Colorado Legislative Session -- Oil and Gas", see 28 Rocky Mt. L. Rev. 53 (1955); for article, "Highlights of the 1955 Colorado Legislative Session -- Trusts", see 28 Rocky Mt. L. Rev. 74 (1955); for note, "Are Capital Gains Colorado Revised Statutes 2019 Page 8 of 600 Uncertified Printout Distributions from Regulated Investment Companies Income or Principal to a Colorado Trustee?", see 31 Rocky Mt. L. Rev. 224 (1959); for article, "The Care and Feeding of Individual Trustees", see 39 U. Colo. L. Rev. 205 (1966); for article, "Some Accounting Problems of Colorado Trustees", see 39 U. Colo. L. Rev. 192 (1967); for article, "Fiduciary Accounting -Are the Ground Rules Clear?", see 11 Colo. Law. 1192 (1982); for article, "Marital Bequest Computations (Pecuniary Bequests)", see 13 Colo. Law. 43 (1984); for article, "Uniform State Laws of Interest to Colorado Probate Lawyers", see 14 Colo. Law. 1961 (1985); for article, "Introduction to Colorado's New Principal and Income Act", see 30 Colo. Law. 55 (March 2001); for article, "Trust Income: New Possibilities and Approaches", see 33 Colo. Law. 77 (Dec. 2004); for article, "Complexities of Pass-Through Entities Held in Trust", see 39 Colo. Law. 59 (June 2010); for article, "The Dangers of Relying on Trust Language", see 45 Colo. Law. 55 (March 2016). 15-1-401. Short title. Subparts 1 through 6 of this part 4 shall be known and may be cited as the "Uniform Principal and Income Act". Source: L. 2000: Entire part R&RE, p. 1128, § 1, effective July 1, 2001. L. 2009: Entire section amended, (HB 09-1241), ch. 169, p. 742, § 1, effective April 22. Editor's note: This section is similar to former § 15-1-401 as it existed prior to 2001. 15-1-402. Definitions. As used in this part 4, unless the context otherwise requires: (1) "Accounting period" means a calendar year unless another twelve-month period is selected by a fiduciary. The term includes a portion of a calendar year or other twelve-month period that begins when an income interest begins or ends when an income interest ends. (2) "Beneficiary" includes, in the case of a decedent's estate, an heir and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary. (3) "Fiduciary" means a personal representative or a trustee. The term includes an executor, administrator, successor personal representative, special administrator, and a person performing substantially the same function. (4) "Income" means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in subpart 4 of this part 4. (5) "Income beneficiary" means a person to whom net income of a trust is or may be payable. (6) "Income interest" means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustee's discretion. (7) "Mandatory income interest" means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute. (8) "Net income" means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under this part 4 to or from income during the period. Colorado Revised Statutes 2019 Page 9 of 600 Uncertified Printout (9) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity. (10) "Principal" means property held in trust for distribution to a remainder beneficiary when the trust terminates. (10.5) "Qualified beneficiary" means a beneficiary who, on the date the beneficiary's qualification is determined: (a) Is a distributee or a permissible distributee of trust income or principal; (b) Would be a distributee or permissible distributee of trust income or principal if the interest of the distributees described in paragraph (a) of this subsection (10.5) terminated on that date; or (c) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on said date. (11) "Remainder beneficiary" means a person entitled to receive principal when an income interest ends. (12) "Terms of a trust" means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding, whether by written or spoken words or by conduct. (12.5) "Total return trust" means a trust that is converted to a total return trust pursuant to section 15-1-404.5 or a trust the terms of which manifest the settlor's intent that the trustee will administer the trust in accordance with section 15-1-404.5 (4) and (4.5). (13) "Trustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court. Source: L. 2000: Entire part R&RE, p. 1128, § 1, effective July 1, 2001. L. 2003: (10.5) and (12.5) added, p. 2102, § 1, effective May 22. Editor's note: This section is similar to former § 15-1-403 as it existed prior to 2001. 15-1-403. Fiduciary duties - general principles. (1) In allocating receipts and disbursements to or between principal and income, and with respect to any matter within the scope of subparts 2 and 3 of this part 4, a fiduciary: (a) Shall administer a trust or estate in accordance with the terms of the trust or the will, even if there is a different provision in subparts 1 through 6 of this part 4; (b) May administer a trust or estate by the exercise of a discretionary power of administration given to the fiduciary by the terms of the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by subparts 1 through 6 of this part 4; (c) Shall administer a trust or estate in accordance with subparts 1 through 6 of this part 4 if the terms of the trust or the will do not contain a different provision or do not give the fiduciary a discretionary power of administration; and (d) Shall add a receipt or charge a disbursement to principal to the extent that the terms of the trust and subparts 1 through 6 of this part 4 do not provide a rule for allocating the receipt or disbursement to or between principal and income. Colorado Revised Statutes 2019 Page 10 of 600 Uncertified Printout (2) In exercising the power to adjust under section 15-1-404 (1) or a discretionary power of administration regarding a matter within the scope of subparts 1 through 6 of this part 4, whether granted by the terms of a trust, a will, or subparts 1 through 6 of this part 4, a fiduciary shall administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries. A determination in accordance with subparts 1 through 6 of this part 4 is presumed to be fair and reasonable to all of the beneficiaries. (3) The terms and conditions of a trust or a will shall govern all actions taken by a fiduciary with respect to any matter within the scope of subparts 1 through 6 of this part 4. The provisions of subparts 1 through 6 of this part 4 are default provisions and may be expanded, restricted, eliminated, or otherwise altered by the provisions of a trust or a will. The provisions of subparts 1 through 6 of this part 4 shall govern the administration of a trust or will by a fiduciary only if such trust or will contains no conflicting provision. (4) Nothing in subparts 1 through 6 of this part 4 shall be construed to limit or restrict a maker of a trust or will from making provisions in such trust or will that are different from the provisions in subparts 1 through 6 of this part 4. Source: L. 2000: Entire part R&RE, p. 1129, § 1, effective July 1, 2001. L. 2009: Entire section amended, (HB 09-1241), ch. 169, p. 742, § 2, effective April 22. 15-1-404. Trustee's power to adjust. (1) A trustee may adjust between principal and income to the extent the trustee considers necessary if the trustee invests and manages trust assets as a prudent investor, the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trust's income, and the trustee determines, after applying the rules in section 15-1-403 (1), that the trustee is unable to comply with section 15-1403 (2). (2) In deciding whether and to what extent to exercise the power conferred by subsection (1) of this section, a trustee shall consider all factors relevant to the trust and its beneficiaries, including the following factors to the extent they are relevant: (a) The nature, purpose, and expected duration of the trust; (b) The intent of the settlor; (c) The identity and circumstances of the beneficiaries; (d) The needs for liquidity, regularity of income, and preservation and appreciation of capital; (e) The assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property; the extent to which an asset is used by a beneficiary; and whether an asset was purchased by the trustee or received from the settlor; (f) The net amount allocated to income under the other sections of subparts 1 through 6 of this part 4 and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available; (g) Whether and to what extent the terms of the trust give the trustee the power to invade principal or accumulate income or prohibit the trustee from invading principal or accumulating Colorado Revised Statutes 2019 Page 11 of 600 Uncertified Printout income, and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income; (h) The actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; and (i) The anticipated tax consequences of an adjustment. (3) A trustee may not make an adjustment: (a) That diminishes the income interest in a trust that requires all of the income to be paid at least annually to a spouse and for which an estate tax or gift tax marital deduction would be allowed, in whole or in part, if the trustee did not have the power to make the adjustment; (b) That reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion; (c) That changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets; (d) From any amount that is permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside; (e) If possessing or exercising the power to make an adjustment causes an individual to be treated as the owner of all or part of the trust for income tax purposes, and the individual would not be treated as the owner if the trustee did not possess the power to make an adjustment; (f) If possessing or exercising the power to make an adjustment causes all or part of the trust assets to be included for estate tax purposes in the estate of an individual who has the power to remove a trustee or appoint a trustee, or both, and the assets would not be included in the estate of the individual if the trustee did not possess the power to make an adjustment; (g) If the trustee is a beneficiary of the trust; (h) If the trustee is not a beneficiary, but the adjustment would benefit the trustee directly or indirectly; or (i) If the trust is a unitrust. (4) If the provisions of paragraph (e), (f), (g), or (h) of subsection (3) of this section apply to a trustee and there is more than one trustee, a cotrustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee or trustees is not permitted by the terms of the trust. (5) A trustee may release the entire power conferred by subsection (1) of this section or may release only the power to adjust from income to principal or the power to adjust from principal to income if the trustee is uncertain about whether possessing or exercising the power will cause a result described in paragraph (a), (b), (c), (d), (e), (f), or (h) of subsection (3) of this section, or if the trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection (3) of this section. The release may be permanent or for a specified period, including a period measured by the life of an individual. (6) Terms of a trust that limit the power of a trustee to make an adjustment between principal and income do not affect the application of this section unless it is clear from the terms of the trust that the terms are intended to deny the trustee the power of adjustment conferred by subsection (1) of this section. (7) Nothing in this section or in subparts 1 through 6 of this part 4 is intended to create or imply a duty to make an adjustment, and a trustee is not liable for not considering whether to make an adjustment or for choosing not to make an adjustment. In a proceeding with respect to a Colorado Revised Statutes 2019 Page 12 of 600 Uncertified Printout trustee's exercise or nonexercise of the power to make an adjustment under this section, the sole remedy is to direct, deny, or revise an adjustment between principal and income. Source: L. 2000: Entire part R&RE, p. 1130, § 1, effective July 1, 2001. L. 2003: (3)(g) and (3)(h) amended and (3)(i) added, p. 2102, § 2, effective May 22. L. 2006: (3)(i) amended, p. 388, § 16, effective July 1. L. 2009: (2)(f) and (7) amended, (HB 09-1241), ch. 169, p. 743, § 3, effective April 22. 15-1-404.5. Conversion - unitrusts - administration. (1) Conversion by trustee. Unless expressly prohibited by the governing instrument, a trustee may release the power to adjust described in section 15-1-404 and convert a trust to a unitrust as described in this section if all of the following apply: (a) The trust describes the amount that may or must be distributed to a beneficiary by referring to the trust's income and the trustee determines that conversion to a unitrust will enable the trustee to better carry out the purposes of the trust; (b) The trustee sends a written notice of the trustee's decision to convert the trust to a unitrust specifying a prospective effective date for the conversion, which may not be sooner than sixty days after the notice is sent, and including a copy of this section to the qualified beneficiaries, determined as of the date the notice is sent and assuming nonexercise of all powers of appointment; (c) There are one or more legally competent beneficiaries described in section 15-1-402 (10.5)(a), and one or more legally competent remainder beneficiaries described in either section 15-1-402 (10.5)(b) or 15-1-402 (10.5)(c), determined as of the date the notice is sent; and (d) No beneficiary has objected in writing to the conversion to a unitrust and delivered such objection to the trustee within sixty days after the notice was sent. (2) Conversion, reconversion, and adjustment of the distribution percentage by agreement. Conversion to a unitrust or reconversion to an income trust may be made by agreement between the trustee and all qualified beneficiaries of the trust. The trustee and all qualified beneficiaries may also agree to modify the distribution percentage; except that the trustee and the qualified beneficiaries may not agree to a distribution percentage less than three percent or greater than five percent. The agreement may include any other actions a court could properly order pursuant to subsection (7) of this section. (3) Conversion or reconversion by court. (a) The trustee may, for any reason, elect to petition the court to order conversion to a unitrust, including without limitation the reason that conversion under subsection (1) of this section is unavailable because: (I) A beneficiary timely objects to the conversion to a unitrust; (II) There are no legally competent beneficiaries described in section 15-1-402 (10.5)(a); or (III) There are no legally competent beneficiaries described in section 15-1-402 (10.5)(b) or (10.5)(c). (b) A beneficiary may request the trustee to convert to a unitrust or adjust the distribution percentage pursuant to this subsection (3). If the trustee declines or fails to act within six months after receiving a written request from a beneficiary to do so, the beneficiary may petition the court to order the conversion or adjustment. Colorado Revised Statutes 2019 Page 13 of 600 Uncertified Printout (c) The trustee may petition the court prospectively to convert from a unitrust to an income trust or to adjust the distribution percentage if the trustee determines that the reconversion or adjustment will enable the trustee to better carry out the purposes of the trust. A beneficiary may request the trustee to petition the court prospectively to reconvert from a unitrust to an income trust or adjust the distribution percentage. If the trustee declines or fails to act within six months after receiving a written request from a beneficiary to do so, the beneficiary may petition the court to order the reconversion or adjustment. (d) (I) In a judicial proceeding instituted under this subsection (3), the trustee may present opinions and reasons concerning: (A) The trustee's support for, or opposition to, a conversion to a unitrust, a reconversion from a unitrust to an income trust, or an adjustment of the distribution percentage of a unitrust, including whether the trustee believes conversion, reconversion, or adjustment of the distribution percentage would enable the trustee to better carry out the purposes of the trust; and (B) Any other matter relevant to the proposed conversion, reconversion, or adjustment of the distribution percentage. (II) A trustee's actions undertaken in accordance with this subsection (3) shall not be deemed improper or inconsistent with the trustee's duty of impartiality unless the court finds from all the evidence that the trustee acted in bad faith. (e) The court shall order conversion to a unitrust, reconversion prospectively from a unitrust to an income trust, or adjustment of the distribution percentage of a unitrust if the court determines that the conversion, reconversion, or adjustment of the distribution percentage will enable the trustee to better carry out the purposes of the trust. (f) If a conversion to a unitrust is made pursuant to a court order, the trustee may reconvert the unitrust to an income trust only: (I) Pursuant to a subsequent court order; or (II) By filing with the court an agreement made pursuant to subsection (2) of this section to reconvert to an income trust. (g) Upon a reconversion, the power to adjust, as described in section 15-1-404 and as it existed before the conversion, shall be revived. (h) An action may be taken under this subsection (3) no more frequently than every two years, unless the court for good cause orders otherwise. (4) Administration of a unitrust. During the time that a trust is a unitrust, the trustee shall administer the trust in accordance with the provisions of this subsection (4) as follows, unless otherwise expressly provided by the terms of the trust: (a) The trustee shall invest the trust assets seeking a total return without regard to whether the return is from income or appreciation of principal; (b) The trustee shall make income distributions in accordance with the governing instrument subject to the provisions of this section; (c) The distribution percentage for any trust converted to a unitrust by a trustee in accordance with subsection (1) of this section shall be four percent, unless a different percentage has been determined in an agreement made pursuant to subsection (2) of this section or ordered by the court pursuant to subsection (3) of this section; (d) (I) The trustee shall pay to a beneficiary in the case of an underpayment within a reasonable time, and shall recover from a beneficiary in the case of an overpayment, either by repayment by the beneficiary or by withholding from future distributions to the beneficiary: Colorado Revised Statutes 2019 Page 14 of 600 Uncertified Printout (A) An amount equal to the difference between the amount properly payable and the amount actually paid; and (B) Interest compounded annually at a rate per annum equal to the distribution percentage in the year or years during which the underpayment or overpayment occurs. (II) For purposes of this paragraph (d), accrual of interest may not commence until the beginning of the trust year following the year in which the underpayment or overpayment occurs. (e) A change in the method of determining a reasonable current return by converting to a unitrust in accordance with this section and substituting the distribution amount for net trust accounting income is a proper change in the definition of trust income and shall be given effect notwithstanding any contrary provision of subparts 1 through 6 of this part 4. The distribution amount shall in all cases be deemed a reasonable current return that fairly apportions the total return of a unitrust. (4.5) For purposes of subsection (4) of this section: (a) "Income", as that term appears in the governing instrument, shall be deemed to mean the distribution amount. (b) (I) The "distribution amount" shall be an annual amount equal to the distribution percentage multiplied by the average net fair market value of the trust's assets. (II) For purposes of this paragraph (b), the average net fair market value of the trust's assets shall be the net fair market value of the trust's assets averaged over the lesser of: (A) The three preceding years; or (B) The period during which the trust has been in existence. (5) Determination of matters in administration of unitrust. The trustee may determine any of the following matters in administering a unitrust as the trustee deems necessary or helpful for the proper functioning of the trust: (a) The effective date of a conversion to a unitrust pursuant to subsection (1) of this section; (b) The manner of prorating the distribution amount for a short year in which a beneficiary's interest commences or ceases, or if the trust is a unitrust for only part of the year, or the trustee may elect to treat the trust year as two separate years, the first of which ends at the close of the day on which the conversion or reconversion occurs and the second of which ends at the close of the trust year; (c) Whether distributions are made in cash or in kind; (d) The manner of adjusting valuations and calculations of the distribution amount to account for other payments from, or contributions to, the trust; (e) Whether to value the trust's assets annually or more frequently; (f) Which valuation dates to use and how many valuation dates to use; (g) Valuation decisions concerning any asset for which there is no readily available market value, including: (I) How frequently to value such an asset; (II) Whether and how often to engage a professional appraiser to value such an asset; and (III) Whether to exclude the value of such an asset from the net fair market value of the trust's assets for purposes of determining the distribution amount. For purposes of this section, any such asset so excluded shall be referred to as an "excluded asset", and the trustee shall Colorado Revised Statutes 2019 Page 15 of 600 Uncertified Printout distribute any net income received from the excluded asset as provided for in the governing instrument, subject to the following principles: (A) The trustee shall treat each asset for which there is no readily available market value as an excluded asset unless the trustee determines that there are compelling reasons not to do so and the trustee considers all relevant factors including the best interests of the beneficiaries; (B) If tangible personal property or real property is possessed or occupied by a beneficiary, the trustee may not limit or restrict any right of the beneficiary to use the property in accordance with the governing instrument regardless of whether the trustee treats the property as an excluded asset; and (C) By way of example and not by way of limitation, assets for which there is a readily available market value include cash and cash equivalents; stocks, bonds, and other securities and instruments for which there is an established market on a stock exchange, in an over-the-counter market, or otherwise; and any other property that can reasonably be expected to be sold within one week of the decision to sell without extraordinary efforts by the seller. By way of example and not by way of limitation, assets for which there is no readily available market value include stocks, bonds, and other securities and instruments for which there is no established market on a stock exchange, in an over-the-counter market, or otherwise; real property; tangible personal property; and artwork and other collectibles. (h) Any other administrative matter that the trustee determines is necessary or helpful for the proper functioning of the unitrust. (6) Allocations. (a) Expenses, taxes, and other charges that would otherwise be deducted from income if the trust was not a unitrust may not be deducted from the distribution amount. (b) Unless otherwise provided by the governing instrument, the distribution amount each year shall be deemed to be paid from the following sources for that year in the following order: (I) Net income determined as if the trust was not a unitrust; (II) Other ordinary income as determined for federal income tax purposes; (III) Net realized short-term capital gains as determined for federal income tax purposes; (IV) Net realized long-term capital gains as determined for federal income tax purposes; (V) Trust principal comprising assets for which there is a readily available market value; and (VI) Other trust principal. (7) Court orders. (a) The court may order any of the following actions in a proceeding brought by a trustee or a beneficiary pursuant to paragraph (a), (b), or (c) of subsection (3) of this section: (I) Select a distribution percentage other than four percent, except that the court may not order a distribution percentage less than three percent or greater than five percent; (II) Average the valuation of the trust's net assets over a period other than three years; (III) Reconvert prospectively from a unitrust, or adjust the distribution percentage of a unitrust; (IV) Direct the distribution of net income, determined as if the trust were not a unitrust, in excess of the distribution amount as to any or all trust assets if the distribution is necessary to preserve a tax benefit; or (V) Change or direct any administrative procedure as the court determines is necessary or helpful for the proper functioning of the unitrust. Colorado Revised Statutes 2019 Page 16 of 600 Uncertified Printout (b) Nothing in this subsection (7) shall be construed to limit the equitable jurisdiction of the court to grant other relief as the court deems proper. (8) Restrictions. Conversion to a unitrust shall not affect any provision in the governing instrument that: (a) Directs or authorizes the trustee to distribute the principal; (b) Directs or authorizes the trustee to distribute a fixed annuity or a fixed fraction of the value of trust assets; (c) Authorizes a beneficiary to withdraw a portion or all of the principal; or (d) Diminishes in any manner an amount permanently set aside for charitable purposes under the governing instrument unless both income and principal are set aside. (9) Tax limitations. If a particular trustee is also a beneficiary of the trust and conversion or failure to convert would enhance or diminish the beneficial interest of that trustee, or if possession or exercise of the conversion power by a particular trustee alone would cause any individual to be treated as owner of a part of the trust for federal income tax purposes or cause a part of the trust to be included in the gross estate of any individual for federal estate tax purposes, then that particular trustee may not participate as a trustee in the exercise of the conversion power; except that: (a) The trustee may petition the court under paragraph (a) of subsection (3) of this section to order conversion in accordance with this section; and (b) A co-trustee or co-trustees to whom this subsection (9) does not apply may convert the trust to a unitrust in accordance with subsection (1) or (2) of this section. (10) Releases. A trustee may irrevocably release the power granted by this section if the trustee reasonably believes the release is in the best interests of the trust and its beneficiaries. The release may be personal to the releasing trustee or it may apply generally to some or all subsequent trustees. The release may be for any specified period, including a period measured by the life of an individual. (11) Remedies. (a) A trustee who reasonably and in good faith takes any action or omits to take any action under this section is not liable to any person interested in the trust. An act or omission by a trustee under this section shall be presumed to be reasonable and undertaken in good faith unless the act or omission is determined by the court to have been an abuse of discretion. (b) If a trustee reasonably and in good faith takes or omits to take any action under this section and a person interested in the trust opposes the act or omission, the person's exclusive remedy shall be to seek an order of the court directing the trustee to: (I) Convert the trust to a unitrust; (II) Reconvert from a unitrust; (III) Change the distribution percentage; or (IV) Order any administrative procedures the court determines are necessary or helpful for the proper functioning of the trust. (c) A claim for relief under this subsection (11) that is not barred by adjudication, consent, or limitation, is nevertheless barred as to any beneficiary who has received a statement fully disclosing the matter unless a proceeding to assert the claim is commenced within six months after receipt of the statement. A beneficiary is deemed to have received a statement if it is received by the beneficiary or the beneficiary's representative in a manner described in section 15-10-403 or 15-1-405. Colorado Revised Statutes 2019 Page 17 of 600 Uncertified Printout (12) No duty. A trustee has no duty to inform a beneficiary about the availability and provisions of this section. A trustee has no duty to review the trust to determine whether any action should be taken under this section unless the trustee is requested in writing by a qualified beneficiary to do so. (13) Application. (a) This section shall apply to trusts in existence on May 22, 2003, and to trusts created on or after that date. (b) This section shall be construed to apply to the administration of a trust that is administered in Colorado under Colorado law or that is governed by Colorado law with respect to the meaning and effect of its terms unless: (I) The trust is a trust described in the federal "Internal Revenue Code of 1986", section 642 (c)(5), 664 (d), or 2702 (a)(3); (II) The governing instrument expressly prohibits the use of this section by specific reference to one or more provisions of subparts 1 through 6 of this part 4; (III) The terms of a trust in existence on May 22, 2003, incorporate provisions that operate as a unitrust. The trustee or a beneficiary of such a trust may proceed under section 15-1405 to adopt provisions in this section that do not contradict provisions in the governing instrument. (14) Application to express trusts. (a) This subsection (14) does not apply to a charitable remainder unitrust as defined by section 664 (d), federal "Internal Revenue Code of 1986", 26 U.S.C. sec. 664, as amended. (b) As used in this section: (I) "Unitrust" means a trust, the terms of which require or permit distribution of a unitrust amount, without regard to whether the trust has been converted to a unitrust in accordance with this section or whether the trust is established by express terms of the governing instrument. (II) "Unitrust amount" means an amount equal to a percentage of a unitrust's assets that may or are required to be distributed to one or more beneficiaries annually in accordance with the terms of the unitrust. The unitrust amount may be determined by reference to the net fair market value of the unitrust's assets as of a particular date each year or as an average determined on a multiple-year basis. Source: L. 2003: Entire section added, p. 2103, § 3, effective May 22. L. 2006: (1), (2), (3), (4), IP(5), (5)(a), (5)(b), (5)(g)(III)(C), (5)(h), (6)(a), (6)(b)(I), (7)(a), (8), (9), (11)(b), and (13) amended and (14) added, p. 382, § 15, effective July 1. L. 2009: (4)(e) and (13)(b)(II) amended, (HB 09-1241), ch. 169, p. 743, § 4, effective April 22. 15-1-405. Notice of action. (1) A trustee may give a notice of proposed action regarding a matter governed by subparts 1 through 6 of this part 4 as provided in this section. For the purpose of this section, a proposed action includes a course of action and a decision not to take action. (2) The trustee shall mail notice of the proposed action to all adult beneficiaries who are receiving, or are entitled to receive, income under the trust or to receive a distribution of principal if the trust were terminated at the time the notice is given. If there are no adult beneficiaries who may receive such notice, then notice shall be given to all beneficiaries who are receiving, or are entitled to receive, income under the trust or to receive a distribution of Colorado Revised Statutes 2019 Page 18 of 600 Uncertified Printout principal if the trust were terminated at the time notice is given, in accordance with the provisions of section 15-10-403. Notice may be given to any other beneficiary. A person shall be bound under this section with respect to such proposed action if the person receives actual notice, if another person having a substantially identical interest receives notice, or if the person would be bound under the provisions of section 15-10-403. (3) Notice of proposed action need not be given to any person who consents in writing to the proposed action. The consent may be executed at any time before or after the proposed action is taken. (4) The notice of proposed action shall state that it is given pursuant to this section and shall state all of the following: (a) The name and mailing address of the trustee; (b) The name and telephone number of a person who may be contacted for additional information; (c) A description of the action proposed to be taken and an explanation of the reasons for the action; (d) The time within which objections to the proposed action can be made, which shall be at least thirty days from the mailing of the notice of proposed action; (e) The date on or after which the proposed action may be taken or is effective. (5) A beneficiary may object to the proposed action by mailing a written objection to the trustee at the address stated in the notice of proposed action within the time period specified in the notice of proposed action. (6) A trustee is not liable to a beneficiary for an action regarding a matter governed by this chapter if the trustee does not receive a written objection to the proposed action from the beneficiary within the applicable period and the other requirements of this section are satisfied. If no beneficiary entitled to notice objects under this section, the trustee is not liable to any current or future beneficiary with respect to the proposed action. (7) If the trustee receives a written objection within the applicable time period, either the trustee or a beneficiary may petition the court to have the proposed action performed as proposed, performed with modifications, or denied. In the proceeding, a beneficiary objecting to the proposed action has the burden of proving that the trustee's proposed action should not be performed. A beneficiary who has not objected is not estopped from opposing the proposed action in the proceeding. If the trustee decides not to implement the proposed action, the trustee shall notify the beneficiaries of the decision not to take the action and the reasons for the decision, and the trustee's decision not to implement the proposed action does not itself give rise to liability to any current or future beneficiary. A beneficiary may petition the court to have the action performed, and has the burden of proving that it should be performed. Source: L. 2000: Entire part R&RE, p. 1132, § 1, effective July 1, 2001. L. 2009: (1) amended, (HB 09-1241), ch. 169, p. 744, § 5, effective April 22. SUBPART 2 DECEDENT'S ESTATE OR TERMINATING INCOME INTEREST Colorado Revised Statutes 2019 Page 19 of 600 Uncertified Printout Cross references: For information concerning the effective date of this subpart 2, see § 15-1-434. 15-1-406. Determination and distribution of net income. (1) After a decedent dies, in the case of an estate, or after an income interest in a trust ends, the following rules shall apply: (a) A fiduciary of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in subparts 3 to 5 of this part 4 that apply to trustees and the rules in paragraph (e) of this subsection (1). The fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property. (b) A fiduciary shall determine the remaining net income of a decedent's estate or a terminating income interest under the rules in subparts 3 to 5 of this part 4 that apply to trustees and by: (I) Including in net income all income from property used to discharge liabilities; (II) Paying from income or principal, in the fiduciary's discretion, fees of attorneys, accountants, and fiduciaries; court costs and other expenses of administration; and interest on death taxes, but the fiduciary may pay those expenses from income of property passing to a trust for which the fiduciary claims an estate tax, marital, or charitable deduction only to the extent that the payment of those expenses from income will not cause the reduction or loss of the deduction; and (III) Paying from principal all other disbursements made or incurred in connection with the settlement of a decedent's estate or the winding up of a terminating income interest, including debts, funeral expenses, disposition of remains, family allowances, and death taxes and related penalties that are apportioned to the estate or terminating income interest by the will, the terms of the trust, or applicable law. (c) A fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright the interest or any other amount provided by the will, the terms of the trust, or applicable law from net income determined under paragraph (b) of this subsection (1) or from principal to the extent that net income is insufficient. If a beneficiary is to receive a pecuniary amount outright from a trust after an income interest ends and no interest or other amount is provided for by the terms of the trust or applicable law, the fiduciary shall distribute the interest or other amount to which the beneficiary would be entitled under applicable law if the pecuniary amount were required to be paid under a will. (d) A fiduciary shall distribute the net income remaining after distributions required by paragraph (c) of this subsection (1) in the manner described in section 15-1-407 to all other beneficiaries, including a beneficiary who receives a pecuniary amount in trust, even if the beneficiary holds an unqualified power to withdraw assets from the trust or other presently exercisable general power of appointment over the trust. (e) A fiduciary may not reduce principal or income receipts from property described in paragraph (a) of this subsection (1) because of a payment described in section 15-1-426 or 15-1427 to the extent that the will, the terms of the trust, or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a third party. The net income and principal receipts from the property are determined by including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the Colorado Revised Statutes 2019 Page 20 of 600 Uncertified Printout date of a decedent's death or an income interest's terminating event, and by making a reasonable provision for amounts that the fiduciary believes the estate or terminating income interest may become obligated to pay after the property is distributed. Source: L. 2000: Entire part R&RE, p. 1134, § 1, effective July 1, 2001. 15-1-407. Distribution to residuary and remainder beneficiaries. (1) Each beneficiary described in section 15-1-406 (1)(d) is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in undistributed principal assets, using values as of the distribution date. If a fiduciary makes more than one distribution of assets to beneficiaries to whom this section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each distribution date, to the net income the fiduciary has received after the date of death or terminating event or earlier distribution date but has not distributed as of the current distribution date. (2) In determining a beneficiary's share of net income, the following rules shall apply: (a) The beneficiary is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in the undistributed principal assets immediately before the distribution date, including assets that later may be sold to meet principal obligations. (b) The beneficiary's fractional interest in the undistributed principal assets must be calculated without regard to property specifically given to a beneficiary and property required to pay pecuniary amounts not in trust. (c) The beneficiary's fractional interest in the undistributed principal assets must be calculated on the basis of the aggregate value of those assets as of the distribution date without reducing the value by any unpaid principal obligation. (d) The distribution date for purposes of this section may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed. (3) If a fiduciary does not distribute all of the collected but undistributed net income to each person as of a distribution date, the fiduciary shall maintain appropriate records showing the interest of each beneficiary in that net income. (4) A fiduciary may apply the rules in this section, to the extent that the fiduciary considers it appropriate, to net gain or loss realized after the date of death or terminating event or earlier distribution date from the disposition of a principal asset if this section applies to the income from the asset. Source: L. 2000: Entire part R&RE, p. 1135, § 1, effective July 1, 2001. SUBPART 3 APPORTIONMENT AT BEGINNING AND END OF INCOME INTEREST Cross references: For information concerning the effective date of this subpart 3, see § 15-1-434. Colorado Revised Statutes 2019 Page 21 of 600 Uncertified Printout 15-1-408. When right to income begins and ends. (1) An income beneficiary is entitled to net income from the date on which the income interest begins. An income interest begins on the date specified in the terms of the trust or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest. (2) An asset becomes subject to a trust: (a) On the date it is transferred to the trust in the case of an asset that is transferred to a trust during the transferor's life; (b) On the date of a testator's death in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the testator's estate; or (c) On the date of an individual's death in the case of an asset that is transferred to a fiduciary by a third party because of the individual's death. (3) An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined under subsection (4) of this section, even if there is an intervening period of administration to wind up the preceding income interest. (4) An income interest ends on the day before an income beneficiary dies or another terminating event occurs, or on the last day of a period during which there is no beneficiary to whom a trustee may distribute income. Source: L. 2000: Entire part R&RE, p. 1136, § 1, effective July 1, 2001. 15-1-409. Apportionment of receipts and disbursements when decedent dies or income interest begins. (1) A trustee shall allocate an income receipt or disbursement, other than one to which section 15-1-406 (1)(a) applies, to principal if its due date occurs before a decedent dies in the case of an estate or before an income interest begins in the case of a trust or successive income interest. (2) A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and it is a periodic due date. An income receipt or disbursement must be treated as accruing from day to day if its due date is not periodic or it has no due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins must be allocated to principal and the balance must be allocated to income. (3) An item of income or an obligation is due on the date the payer is required to make a payment. If a payment date is not stated, there is no due date for the purposes of subparts 1 through 6 of this part 4. Distributions to shareholders or other owners from an entity to which section 15-1-411 applies are deemed to be due on the date fixed by the entity for determining who is entitled to receive the distribution or, if no date is fixed, on the declaration date for the distribution. A due date is periodic for receipts or disbursements that must be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals. Source: L. 2000: Entire part R&RE, p. 1137, § 1, effective July 1, 2001. L. 2009: (3) amended, (HB 09-1241), ch. 169, p. 744, § 6, effective April 22. Colorado Revised Statutes 2019 Page 22 of 600 Uncertified Printout 15-1-410. Apportionment when income interest ends. (1) For the purposes of this section, "undistributed income" means net income received before the date on which an income interest ends. The term does not include an item of income or expense that is due or accrued or net income that has been added or is required to be added to principal under the terms of the trust. (2) When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, the beneficiary's share of the undistributed income that is not disposed of under the terms of the trust unless the beneficiary has an unqualified power to revoke more than five percent of the trust immediately before the income interest ends. In the latter case, the undistributed income from the portion of the trust that may be revoked must be added to principal. (3) When a trustee's obligation to pay a fixed annuity or a fixed fraction of the value of the trust's assets ends, the trustee shall prorate the final payment if and to the extent required by applicable law to accomplish a purpose of the trust or its settlor relating to income, gift, estate, or other tax requirements. Source: L. 2000: Entire part R&RE, p. 1137, § 1, effective July 1, 2001. SUBPART 4 ALLOCATION OF RECEIPTS DURING ADMINISTRATION OF TRUST Cross references: For information concerning the effective date of this subpart 4, see § 15-1-434. 15-1-411. Character of receipts. (1) For the purposes of this section, "entity" means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or any other organization in which a trustee has an interest other than a trust or estate governed by section 15-1-412, a business or activity governed by section 15-1-413, or an asset-backed security governed by section 15-1-425. (2) Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity. (3) A trustee shall allocate the following receipts from an entity to principal: (a) Property other than money; (b) Money received in one distribution or a series of related distributions in exchange for part or all of a trust's interest in the entity; (c) Money received in total or partial liquidation of the entity; and (d) Money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes. (4) Money is received in partial liquidation: (a) To the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or Colorado Revised Statutes 2019 Page 23 of 600 Uncertified Printout (b) If the total amount of money and property received in a distribution or series of related distributions is greater than twenty percent of the entity's gross assets, as shown by the entity's year-end financial statements immediately preceding the initial receipt. (5) Money is not received in partial liquidation, nor may it be taken into account under paragraph (b) of subsection (4) of this section, to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money. (6) A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity's board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation's board of directors. Source: L. 2000: Entire part R&RE, p. 1138, § 1, effective July 1, 2001. 15-1-412. Distribution from trust or estate. A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest, and shall allocate to principal an amount received as a distribution of principal from such a trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such a trust to a trustee, section 15-1-411 or section 15-1-425 shall apply to a receipt from the trust. Source: L. 2000: Entire part R&RE, p. 1139, § 1, effective July 1, 2001. 15-1-413. Business and other activities conducted by trustee. (1) If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the trust's general accounting records, the trustee may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets. (2) A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts must be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity, and the extent to which the remaining net cash receipts are accounted for as principal or income in the trust's general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the trust's general accounting records to the extent the trustee determines that the amount received is no longer required in the conduct of the business. (3) Activities for which a trustee may maintain separate accounting records include: (a) Retail, manufacturing, service, and other traditional business activities; (b) Farming; (c) Raising and selling livestock and other animals; (d) Management of rental properties; (e) Extraction of minerals and other natural resources; (f) Timber operations; and (g) Activities governed by section 15-1-424. Colorado Revised Statutes 2019 Page 24 of 600 Uncertified Printout Source: L. 2000: Entire part R&RE, p. 1139, § 1, effective July 1, 2001. 15-1-414. Principal receipts. (1) A trustee shall allocate to principal: (a) To the extent not allocated to income under subparts 1 through 6 of this part 4, assets received from a transferor during the transferor's lifetime, a decedent's estate, a trust with a terminating income interest, or a payer under a contract naming the trust or its trustee as beneficiary; (b) Money or other property received from the sale, exchange, liquidation, or change in form of a principal asset, including realized profit, subject to this subpart 4; (c) Amounts recovered from third parties to reimburse the trust because of disbursements described in section 15-1-427 (1)(g) or for other reasons to the extent not based on the loss of income; (d) Proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income; (e) Net income received in an accounting period during which there is no beneficiary to whom a trustee may or must distribute income; and (f) Other receipts as provided in sections 15-1-418 to 15-1-425. Source: L. 2000: Entire part R&RE, p. 1139, § 1, effective July 1, 2001. L. 2009: (1)(a) amended, (HB 09-1241), ch. 169, p. 744, § 7, effective April 22. 15-1-415. Rental property. To the extent that a trustee accounts for receipts from rental property pursuant to this section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, must be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustee's contractual obligations have been satisfied with respect to that amount. Source: L. 2000: Entire part R&RE, p. 1140, § 1, effective July 1, 2001. 15-1-416. Obligation to pay money. (1) An amount received as interest, whether determined at a fixed, variable, or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, must be allocated to income without any provision for amortization of premium. (2) A trustee shall allocate to principal an amount received from the sale, redemption, or other disposition of an obligation to pay money to the trustee more than one year after it is purchased or acquired by the trustee, including an obligation whose purchase price or value when it is acquired is less than its value at maturity. If the obligation matures within one year after it is purchased or acquired by the trustee, an amount received in excess of its purchase price or its value when acquired by the trust must be allocated to income. (3) This section shall not apply to an obligation to which the provisions of section 15-1419, 15-1-420, 15-1-421, 15-1-422, 15-1-424, or 15-1-425 applies. Colorado Revised Statutes 2019 Page 25 of 600 Uncertified Printout Source: L. 2000: Entire part R&RE, p. 1140, § 1, effective July 1, 2001. 15-1-417. Insurance policies and similar contracts. (1) Except as otherwise provided in subsection (2) of this section, a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal. (2) A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to section 15-1-413, loss of profits from a business. (3) This section shall not apply to a contract governed by the provisions of section 15-1419. Source: L. 2000: Entire part R&RE, p. 1140, § 1, effective July 1, 2001. 15-1-418. Insubstantial allocations not required. (1) If a trustee determines that an allocation between principal and income required by the provisions of sections 15-1-419 to 15-1422 or section 15-1-425 is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances described in section 15-1-404 (3) applies to the allocation. This power may be exercised by a cotrustee in the circumstances described in section 15-1-404 (4) and may be released for the reasons and in the manner described in section 15-1-404 (5). An allocation is presumed to be insubstantial if: (a) The amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than ten percent; or (b) The value of the asset producing the receipt for which the allocation would be made is less than ten percent of the total value of the trust's assets at the beginning of the accounting period. Source: L. 2000: Entire part R&RE, p. 1141, § 1, effective July 1, 2001. 15-1-419. Deferred compensation, annuities, and similar payments. (1) For purposes of this section: (a) "Payment" means a payment that a trustee may receive over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payer in exchange for future payments. The term includes a payment made in money or property from the payer's general assets or from a separate fund created by the payer. For purposes of subsections (4) to (7) of this section, "payment" also includes any payment from any separate fund, regardless of the reason for the payment. (b) "Separate fund" includes a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus, or stock-ownership plan. (2) To the extent that a payment is characterized as interest, a dividend, or a payment made in lieu of interest or a dividend, a trustee shall allocate the payment to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the Colorado Revised Statutes 2019 Page 26 of 600 Uncertified Printout same accounting period that is not characterized as interest, a dividend, or an equivalent payment. (3) If no part of a payment is characterized as interest, a dividend, or an equivalent payment, and all or part of the payment is required to be made, a trustee shall allocate to income ten percent of the part that is required to be made during the accounting period and the balance to principal. If no part of a payment is required to be made or the payment received is the entire amount to which the trustee is entitled, the trustee shall allocate the entire payment to principal. For purposes of this subsection (3), a payment is not required to be made to the extent that it is made because the trustee exercises a right of withdrawal. (4) Except as otherwise provided in subsection (5) of this section, subsections (6) and (7) of this section apply, and subsections (2) and (3) do not apply, in determining the allocation of a payment made from a separate fund to: (a) A trust to which an election to qualify for a marital deduction under 26 U.S.C. sec. 2056 (b)(7), as amended, has been made; or (b) A trust that qualifies for the marital deduction under 26 U.S.C. sec. 2056 (b)(5), as amended. (5) Subsections (4), (6), and (7) of this section do not apply if and to the extent that the series of payments would, without application of said subsection (4), qualify for the marital deduction under 26 U.S.C. sec. 2056 (b)(7)(C), as amended. (6) A trustee shall determine the internal income of each separate fund for the accounting period as if the separate fund were a trust subject to this part 4. Upon request of the surviving spouse, the trustee shall demand that the person administering the separate fund distribute the internal income to the trust. The trustee shall allocate a payment from the separate fund to income to the extent of the internal income of the separate fund and distribute that amount to the surviving spouse. The trustee shall allocate the balance of the payment to principal. Upon request of the surviving spouse, the trustee shall allocate principal to income to the extent the internal income of the separate fund exceeds payments made from the separate fund to the trust during the accounting period. (7) If a trustee cannot determine the internal income of a separate fund but can determine the value of the separate fund, the internal income of the separate fund is deemed to equal four percent of the fund's value, according to the most recent statement of value preceding the beginning of the accounting period. If the trustee can determine neither the internal income of the separate fund nor the fund's value, the internal income of the fund is deemed to equal the product of the interest rate and the present value of the expected future payments, as determined under 26 U.S.C. sec. 7520, as amended, for the month preceding the accounting period for which the computation is made. (8) This section does not apply to a payment governed by the provisions of section 15-1420. Source: L. 2000: Entire part R&RE, p. 1141, § 1, effective July 1, 2001. L. 2009: Entire section amended, (SB 09-139), ch. 131, p. 565, § 1, effective April 16. 15-1-420. Liquidating asset. (1) For purposes of this section, "liquidating asset" means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, royalty right, Colorado Revised Statutes 2019 Page 27 of 600 Uncertified Printout and right to receive payments during a period of more than one year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to section 15-1-419, resources subject to section 15-1-421, timber subject to section 15-1-422, an activity subject to section 15-1-424, an asset subject to section 15-1-425, or any asset for which the trustee establishes a reserve for depreciation under section 15-1-428. (2) A trustee shall allocate to income ten percent of the receipts from a liquidating asset and the balance to principal. Source: L. 2000: Entire part R&RE, p. 1142, § 1, effective July 1, 2001. 15-1-421. Minerals, water, and other natural resources. (1) To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources pursuant to this section, the trustee shall allocate them as follows: (a) If received as nominal delay rental or nominal annual rent on a lease, a receipt must be allocated to income. (b) If received from a production payment, a receipt must be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance must be allocated to principal. (c) If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus, or delay rental is more than nominal, ninety percent must be allocated to principal and the balance to income. (d) If an amount is received from a working interest or any other interest not provided for in paragraph (a), (b), or (c) of this subsection (1), ninety percent of the net amount received must be allocated to principal and the balance to income. (2) An amount received on account of an interest in water that is renewable must be allocated to income. If the water is not renewable, ninety percent of the amount must be allocated to principal and the balance to income. (3) Subparts 1 through 6 of this part 4 apply whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust. (4) If a trust owns an interest in minerals, water, or other natural resources on July 1, 2001, the trustee may allocate receipts from the interest as provided in subparts 1 through 6 of this part 4 or in the manner used by the trustee before July 1, 2001. If the trust acquires an interest in minerals, water, or other natural resources after July 1, 2001, the trustee shall allocate receipts from the interest as provided in subparts 1 through 6 of this part 4. Source: L. 2000: Entire part R&RE, p. 1142, § 1, effective July 1, 2001. L. 2009: (3) and (4) amended, (HB 09-1241), ch. 169, p. 744, § 8, effective April 22. Editor's note: This section is similar to former § 15-1-414 as it existed prior to 2001. 15-1-421.5. Disposition of natural resources. (1) If any part of the principal consists of a right to receive royalties, overriding or limited royalties, working interests, production payments, net profit interests, or other interests in minerals or other natural resources in, on, or Colorado Revised Statutes 2019 Page 28 of 600 Uncertified Printout under land, the receipts from taking the natural resources from the land shall be allocated as follows: (a) If received as rent on a lease or extension payments on a lease, the receipts are income; (b) If received from a production payment, the receipts are income to the extent of any factor for interest or its equivalent provided in the governing instrument. There shall be allocated to principal the fraction of the balance of the receipts that the unrecovered cost of the production payment bears to the balance owed on the production payment, exclusive of any factor for interest or its equivalent. The receipts not allocated to principal are income. (c) If received as a royalty, overriding or limited royalty, or bonus, or from a working, net profit, or any other interest in minerals or other natural resources, receipts not provided for in paragraph (a) or (b) of this subsection (1) shall be apportioned on a yearly basis in accordance with this paragraph (c) regardless of whether any natural resource was being taken from the land at the time the trust was established. Fifteen percent of the gross receipts, but not to exceed fifty percent of the net receipts remaining after payment of all expenses, direct and indirect, computed without allowance for depletion, shall be added to principal as an allowance for depletion. The balance of the gross receipts after payment therefrom of all expenses, direct and indirect, is income. (2) If a trustee, on April 22, 2009, held an item of depletable property of a type specified in this section, he or she shall allocate receipts from the property in the manner used before April 22, 2009, but as to all depletable property acquired after April 22, 2009, by an existing or new trust, the method of allocation provided herein shall be used. (3) This section does not apply to timber, water, soil, sod, dirt, turf, or mosses. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 745, § 9, effective April 22. 15-1-422. Timber. (1) To the extent that a trustee accounts for receipts from the sale of timber and related products pursuant to this section, the trustee shall allocate the net receipts: (a) To income to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest; (b) To principal to the extent that the amount of timber removed from the land exceeds the rate of growth of the timber or the net receipts are from the sale of standing timber; (c) To or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease or contract and applying the rules in paragraphs (a) and (b) of this subsection (1); or (d) To principal to the extent that advance payments, bonuses, and other payments are not allocated pursuant to paragraph (a), (b), or (c) of this subsection (1). (2) In determining net receipts to be allocated pursuant to subsection (1) of this section, a trustee shall deduct and transfer to principal a reasonable amount for depletion. (3) Subparts 1 through 6 of this part 4 apply whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust. Colorado Revised Statutes 2019 Page 29 of 600 Uncertified Printout (4) If a trust owns an interest in timberland on July 1, 2001, the trustee may allocate net receipts from the sale of timber and related products as provided in subparts 1 through 6 of this part 4 or in the manner used by the trustee before July 1, 2001. If the trust acquires an interest in timberland after July 1, 2001, the trustee shall allocate net receipts from the sale of timber and related products as provided in subparts 1 through 6 of this part 4. Source: L. 2000: Entire part R&RE, p. 1143, § 1, effective July 1, 2001. L. 2009: (3) and (4) amended, (HB 09-1241), ch. 169, p. 746, § 10, effective April 22. 15-1-423. Property not productive of income. (1) If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under section 15-1-404 and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by section 15-1-404 (1). The trustee may decide which action or combination of actions to take. (2) In cases not governed by the provisions of subsection (1) of this section, proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period. Source: L. 2000: Entire part R&RE, p. 1144, § 1, effective July 1, 2001. Editor's note: This section is similar to former § 15-1-413 as it existed prior to 2001. 15-1-424. Derivatives and options. (1) For purposes of this section, "derivative" means a contract or financial instrument or a combination of contracts and financial instruments that gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or other market indicator for an asset or a group of assets. (2) To the extent that a trustee does not account under section 15-1-413 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions. (3) If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option must be allocated to principal. An amount paid to acquire the option must be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, must be allocated to principal. Source: L. 2000: Entire part R&RE, p. 1144, § 1, effective July 1, 2001. Colorado Revised Statutes 2019 Page 30 of 600 Uncertified Printout 15-1-425. Asset-backed securities. (1) For purposes of this section, "asset-backed security" means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset governed by the provisions of section 15-1-411 or 15-1-419. (2) If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment that the payer identifies as being from interest or other current return and shall allocate the balance of the payment to principal. (3) If a trust receives one or more payments in exchange for the trust's entire interest in an asset-backed security in one accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that will result in the liquidation of the trust's interest in the security over more than one accounting period, the trustee shall allocate ten percent of the payment to income and the balance to principal. Source: L. 2000: Entire part R&RE, p. 1144, § 1, effective July 1, 2001. SUBPART 5 ALLOCATION OF DISBURSEMENTS DURING ADMINISTRATION OF TRUST Cross references: For information concerning the effective date of this subpart 5, see § 15-1-434. 15-1-426. Disbursements from income. (1) A trustee shall make the following disbursements from income to the extent that they are not disbursements governed by the provisions of section 15-1-406 (1)(b)(II) or (1)(b)(III): (a) One-half of the regular compensation of the trustee and of any person providing investment advisory or custodial services to the trustee; (b) One-half of all expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests; (c) All of the other ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and expenses of a proceeding or other matter that concerns primarily the income interest; and (d) Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset. Source: L. 2000: Entire part R&RE, p. 1145, § 1, effective July 1, 2001. Editor's note: This section is similar to former § 15-1-415 as it existed prior to 2001. Colorado Revised Statutes 2019 Page 31 of 600 Uncertified Printout 15-1-427. Disbursements from principal. (1) A trustee shall make the following disbursements from principal: (a) The remaining one-half of the disbursements described in section 15-1-426 (1)(a) and section 15-1-426 (1)(b); (b) All of the trustee's compensation calculated on principal as a fee for acceptance, distribution, or termination, and disbursements made to prepare property for sale; (c) Payments on the principal of a trust debt; (d) Expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property; (e) Premiums paid on a policy of insurance not described in section 15-1-426 (1)(d) of which the trust is the owner and beneficiary; (f) Estate, inheritance, and other transfer taxes, including penalties, apportioned to the trust; and (g) Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common law claims by third parties, and defending claims based on environmental matters. (2) If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation. Source: L. 2000: Entire part R&RE, p. 1145, § 1, effective July 1, 2001. Editor's note: This section is similar to former § 15-1-415 as it existed prior to 2001. 15-1-428. Transfers from income to principal for depreciation. (1) For purposes of this section, "depreciation" means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one year. (2) A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation: (a) Of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary; (b) During the administration of a decedent's estate; or (c) Under this section if the trustee is accounting under section 15-1-413 for the business or activity in which the asset is used. (3) An amount transferred to principal need not be held as a separate fund. Source: L. 2000: Entire part R&RE, p. 1145, § 1, effective July 1, 2001. Colorado Revised Statutes 2019 Page 32 of 600 Uncertified Printout 15-1-429. Transfers from income to reimburse principal. (1) If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements. (2) Principal disbursements governed by the provisions of subsection (1) of this section include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a third party: (a) An amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs; (b) A capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments; (c) Disbursements made to prepare property for rental, including tenant allowances, leasehold improvements, and broker's commissions; (d) Periodic payments on an obligation secured by a principal asset to the extent that the amount transferred from income to principal for depreciation is less than the periodic payments; and (e) Disbursements described in section 15-1-427 (1)(g). (3) If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection (1) of this section. Source: L. 2000: Entire part R&RE, p. 1147, § 1, effective July 1, 2001. 15-1-430. Income taxes. (1) A tax required to be paid by a trustee based on receipts allocated to income must be paid from income. (2) A tax required to be paid by a trustee based on receipts allocated to principal must be paid from principal, even if the tax is called an income tax by the taxing authority. (3) A tax required to be paid by a trustee on the trust's share of an entity's taxable income must be paid: (a) From income to the extent that receipts from the entity are allocated only to income; (b) From principal to the extent that receipts from the entity are allocated only to principal; (c) Proportionately from principal and income to the extent that receipts from the entity are allocated to both income and principal; and (d) From principal to the extent that the tax exceeds the total receipts from the entity. (4) After applying subsections (1) to (3) of this section, the trustee shall adjust income or principal receipts to the extent that the trust's taxes are reduced because the trust receives a deduction for payments made to a beneficiary. Source: L. 2000: Entire part R&RE, p. 1147, § 1, effective July 1, 2001. L. 2009: Entire section amended, (SB 09-139), ch. 131, p. 567, § 2, effective April 16. 15-1-431. Adjustments between principal and income because of taxes. (1) A fiduciary may make adjustments between principal and income to offset the shifting of economic Colorado Revised Statutes 2019 Page 33 of 600 Uncertified Printout interests or tax benefits between income beneficiaries and remainder beneficiaries that arise from: (a) Elections and decisions, other than those described in subsection (2) of this section, that the fiduciary makes from time to time regarding tax matters; (b) An income tax or any other tax that is imposed upon the fiduciary or a beneficiary as a result of a transaction involving or a distribution from the estate or trust; or (c) The ownership by an estate or trust of an interest in an entity whose taxable income, whether or not distributed, is includable in the taxable income of the estate, trust, or a beneficiary. (2) If the amount of an estate tax marital deduction or charitable contribution deduction is reduced because a fiduciary deducts an amount paid from principal for income tax purposes instead of deducting it for estate tax purposes, and as a result estate taxes paid from principal are increased and income taxes paid by an estate, trust, or beneficiary are decreased, each estate, trust, or beneficiary that benefits from the decrease in income tax shall reimburse the principal from which the increase in estate tax is paid. The total reimbursement must equal the increase in the estate tax to the extent that the principal used to pay the increase would have qualified for a marital deduction or charitable contribution deduction but for the payment. The proportionate share of the reimbursement for each estate, trust, or beneficiary whose income taxes are reduced must be the same as its proportionate share of the total decrease in income tax. An estate or trust shall reimburse principal from income. Source: L. 2000: Entire part R&RE, p. 1148, § 1, effective July 1, 2001. SUBPART 6 MISCELLANEOUS PROVISIONS Cross references: For information concerning the effective date of this subpart 6, see § 15-1-434. 15-1-432. Uniformity of application - construction. In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. Source: L. 2000: Entire part R&RE, p. 1148, § 1, effective July 1, 2001. 15-1-433. Severability. If any provision of subparts 1 through 6 of this part 4 or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of subparts 1 through 6 of this part 4 that can be given effect without the invalid provision or application, and to this end the provisions of subparts 1 through 6 of this part 4 are severable. Source: L. 2000: Entire part R&RE, p. 1148, § 1, effective July 1, 2001. L. 2009: Entire section amended, (HB 09-1241), ch. 169, p. 746, § 11, effective April 22. Colorado Revised Statutes 2019 Page 34 of 600 Uncertified Printout 15-1-434. Effective date - application to existing trusts and estates - election. (1) Subparts 1 through 6 of this part 4 shall take effect July 1, 2001. (2) Subparts 1 through 6 of this part 4 shall apply to every trust or decedent's estate existing on and after July 1, 2001, except as otherwise expressly provided in the will or terms of the trust or in subparts 1 through 6 of this part 4. For each trust established under a will or trust agreement existing and irrevocable on July 1, 2001, the trustee may elect to apply the "Uniform Principal and Income Act" of this state in effect on June 30, 2001. The trustee shall make such election by July 1, 2002. (3) Notwithstanding the provisions of subsection (2) of this section, subparts 1 through 6 of this part 4 shall not apply to any trust or decedent's estate existing on July 1, 2001, in which no trustee has the authority to act under section 15-1-404 unless the trustees elect to apply subparts 1 through 6 of this part 4. The trustees may make this election at any time. (4) Once an election is made pursuant to this section, the election shall be irrevocable. The trustee shall give notice of such an election to the beneficiaries of the trust in accordance with section 15-1-405. If such notice complies with section 15-1-405, the provisions of said section shall apply to such election. Source: L. 2000: Entire part R&RE, p. 1149, § 1, effective July 1, 2001. L. 2009: (1), (2), and (3) amended, (HB 09-1241), ch. 169, p. 746, § 12, effective April 22. 15-1-435. Application of certain provisions - notice of election. (1) Section 15-1421.5 shall apply to all trusts and estates executed on or after July 1, 2009, unless the qualified beneficiaries elect not to apply said section. (2) The provisions of section 15-1-421.5 shall not apply to the determination of income from the disposition of natural resources in a trust or estate created before July 1, 2009, unless the qualified beneficiaries elect to apply section 15-1-421.5 as provided in this section. (3) If the qualified beneficiaries elect under subsection (1) or (2) of this section, notice of the election to apply or not to apply section 15-1-421.5 shall be given by the trustee in accordance with section 15-1-405, and the provisions of such section shall apply to the election. (4) An election to apply section 15-1-421.5 is irrevocable. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 746, § 13, effective April 22. 15-1-436. Transitional matters. (1) Section 15-1-419, as amended by Senate Bill 09139, enacted in 2009, applies to a trust described in section 15-1-419 (4) on and after the following dates: (a) If the trust is not funded as of April 16, 2009, the date of the decedent's death; (b) If the trust is initially funded in the calendar year beginning January 1, 2009, the date of the decedent's death; or (c) If the trust is not described in either paragraph (a) or (b) of this subsection (1), January 1, 2009. Colorado Revised Statutes 2019 Page 35 of 600 Uncertified Printout Source: L. 2009: Entire section added, (SB 09-139), ch. 131, p. 567, § 3, effective April 16. SUBPART 7 UNIFORM PRINCIPAL AND INCOME ACT OF 1955 15-1-451. Short title. This subpart 7 shall be known and may be cited as the "Uniform Principal and Income Act of 1955". Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 747, § 14, effective April 22. 15-1-452. Source and prior enactment - uniform application. (1) This subpart 7 is derived from the "Uniform Principal and Income Act" promulgated in 1931 by the national conference of commissioners on uniform state laws and enacted in this state effective September 1, 1955. The reenactment of such act in this subpart 7 includes the amendments to such act enacted in this state through June 30, 2001, and additional amendments to accommodate its reenactment. (2) This subpart 7 shall be construed and interpreted as to effectuate the general purpose of the act as promulgated by such commissioners to make uniform the law of those jurisdictions which enacted such act taking into account the case law of such jurisdictions with respect to such act. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 747, § 14, effective April 22. 15-1-453. Definitions - construction of terms. (1) As used in this subpart 7, unless the context otherwise requires: (a) "Executor" means the executor named in a will and any successor executor and includes an administrator with the will annexed. (b) "Income" means the return derived from principal. (c) "Net probate income" means the income derived from property passing to the executor by will or by the execution of a power of appointment or from any substitute for such property acquired by purchase, exchange, or otherwise, including income derived from property which is used to discharge liabilities of the testator or of the executor in his or her representative capacity, and legacies payable in money, less any income taxes paid by the executor which are attributable to such income and less that share of administration expenses properly chargeable to income. (d) "Principal" means any realty or personalty which has been so set aside or limited by the owner thereof or a person thereto legally empowered that it and any substitutions for it are eventually to be conveyed, delivered, or paid to a person, while the return therefrom or use thereof or any part of such return or use is in the meantime to be taken or received by or held for accumulation for the same or another person. Colorado Revised Statutes 2019 Page 36 of 600 Uncertified Printout (e) "Remainderman" means the person ultimately entitled to the principal, whether named or designated by the terms of the transaction by which the principal was established or determined by operation of law. (f) "Tenant" means the person to whom income is presently or currently payable or for whom it is accumulated or who is entitled to the beneficial use of the principal presently and for a time prior to its distribution. (g) "Trustee" includes the original trustee of any trust to which the principal may be subject and also any succeeding or added trustee. (2) This section shall be effective with respect to wills the testators of which die on or after April 18, 1961, to revocable inter vivos trusts the settlors of which die after said date, and to irrevocable inter vivos trusts which are created after said date. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 747, § 14, effective April 22. 15-1-454. Applicability. (1) Except as specifically provided by the person establishing the principal, this subpart 7 shall apply: (a) To life estates, estates for a term, remainders, reversions, and other legal estates created before July 1, 2001, or after July 1, 2010; (b) Except as provided in paragraph (b) of subsection (2) of this section, to trusts in existence before July 1, 2001, that have elected: (I) Not to have subparts 1 through 6 of this part 4 apply to such trust, in accordance with section 15-1-434 (2); or (II) To have the prior laws apply in accordance with section 15-1-434 (3); and (c) To trusts in existence before July 1, 2001, that are subject to section 15-1-434 (3) and that have not elected to have subparts 1 through 6 of this part 4 apply to the trust, in accordance with section 15-1-434 (3). (2) (a) This subpart 7 shall apply retroactively to a life estate or estate for term in principal, which estate was created during the period beginning on July 1, 2001, and before July 1, 2010, and also to the remainder or reversion that commences in possession upon the termination of such life estate or estate for a term unless a tenant or a remainderman of such principal, or any part of such principal, elects to apply and complies with the provisions of subsection (3) of this section. (b) This subpart 7 shall apply retroactively to trusts described in paragraphs (b) and (c) of subsection (1) of this section beginning on July 1, 2001, unless the qualified beneficiaries of the trust elect to apply and comply with the provisions of section 15-1-405. (3) (a) A tenant or a remainderman of principal, or any part of such principal, may make and deliver and, if required, record a notice of election as provided in this subsection (3) on or before July 1, 2009. (b) The notice of election shall be a written statement of the election by such tenant or remainderman, against the retroactive application of this subpart 7 to such estates in such principal. The notice of election shall include a reference to this subsection (3); the dates of the instruments creating the present and future legal estates in such principal; the names of the persons creating such estates; a description of the principal, including the location of such principal; a description of such estates and the names or descriptions of the persons who are Colorado Revised Statutes 2019 Page 37 of 600 Uncertified Printout tenants and remaindermen of such principal; identification of which such persons are tenants and which are remaindermen; and the name and address of the person making the election. The notice of election shall be signed and acknowledged by the person making the election. (c) (I) In the case of an election made by a tenant, notice shall be delivered to the other tenants and to the remaindermen of the principal. In the case of an election made by a remainderman, notice shall be delivered to the other remaindermen and to the tenants of the principal. (II) If the estate of the remainderman is unvested, notice may be made by or delivered to the persons then living or in existence who would, if then living or in existence, succeed to the principal upon the termination of the life estate or estate for a term in the principal. (III) In the case of a child under the age of eighteen years, such notice may be made by or delivered to a conservator, guardian, or parent of such child. In the case of a person who is not competent to manage his or her affairs, such notice may be made by or delivered to the conservator, guardian, or person acting under a general power of attorney with respect to the business or financial affairs of such individual. (IV) The notice of election shall be considered delivered to the person to whom delivery is required to be made when the notice of election or a copy thereof is delivered in person or when mailed by registered or certified mail, return receipt requested, to such person. (V) The recording of notice as provided in paragraph (d) of this subsection (3) shall fulfill the requirement of delivery of such notice in the case of any unborn, unascertained, or unknown person and in the case of a child who is under the age of eighteen years or an individual who is not competent to manage his or her affairs and for whom there is no person authorized by subparagraph (III) of this paragraph (c) to receive such notice. (d) (I) In the case that the principal is realty, a copy of the notice of election with an additional statement made as required by this subparagraph (I) shall be recorded with the recorder of the county where such realty is located. The additional statement shall state to whom, when, and by what means the notice was mailed or otherwise delivered and be signed by the person making the election. (II) In the case that the principal is not realty, a copy of the notice with such additional statement may be recorded with the recorder of the county where the principal is located or, if the principal is intangible personalty, where the address of the tenant in possession of such principal is located. If such location is not within this state, then such copy and statement shall be recorded with the recorder of the city and county of Denver. (III) Such copy of the notice and additional statement when recorded as provided in this paragraph (d) are prima facie evidence of the facts therein stated. (e) No fiduciary for any trust, estate, individual, or other person with an interest, right, or power affected by the retroactive application of such amendments shall be required to make such election, nor shall such fiduciary be held responsible for not making such election. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 748, § 14, effective April 22. 15-1-455. Application of this subpart 7 - powers of settlor. (1) This subpart 7 shall govern the ascertainment of income and principal and the apportionment of receipts and expenses between tenants and remaindermen in all cases where a principal has been established Colorado Revised Statutes 2019 Page 38 of 600 Uncertified Printout with or, unless otherwise stated in this subpart 7, without the interposition of a trust; except that, in the establishment of the principal, provision may be made touching all matters covered by this subpart 7, and the person establishing the principal may himself or herself direct the manner of ascertainment of income and principal and the apportionment of receipts and expenses or grant discretion to the trustee or other person to do so, and such provision and direction, where not otherwise contrary to law, shall control notwithstanding this subpart 7. (2) If neither this subpart 7 nor the direction of the person establishing the principal states an applicable rule, income and principal shall be determined in accordance with what is reasonable and equitable in view of the interests of those entitled to income as well as those entitled to principal and in view of the manner in which persons of ordinary prudence, discretion, and judgment would determine such matters. If the person establishing the principal grants the trustee or other person discretion in crediting a receipt or charging an expenditure to income or principal or partly to each, no inference of imprudence or partiality arises from the fact that the trustee or other person has made an allocation contrary to the provisions of this subpart 7. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 750, § 14, effective April 22. 15-1-456. Income and principal - disposition. (1) All receipts of money or other property paid or delivered as rent of realty or hire of personalty or dividends on corporate shares payable other than in shares of the corporation itself, or interest on money loaned, or interest on or the rental or use value of property wrongfully withheld or tortiously damaged, or otherwise in return for the use of principal, shall be deemed income unless otherwise expressly provided in this subpart 7. (2) All receipts of money or other property paid or delivered as the consideration for the sale or other transfer, not a leasing or letting, of property forming a part of the principal, or as a repayment of loans, or in liquidation of the assets of a corporation, or as the proceeds of property taken on eminent domain proceedings where separate awards to tenant and remainderman are not made, or as proceeds of insurance upon property forming a part of the principal except where such insurance has been issued for the benefit of either tenant or remainderman alone, or otherwise as a refund or replacement or change in form of principal, shall be deemed principal, unless otherwise expressly provided in this subpart 7. Any profit or loss resulting upon any change in form of principal shall inure to or fall upon principal. (3) All income after payment of expenses properly chargeable to it shall be paid and delivered to the tenant or retained by him or her if already in his or her possession or held for accumulation where legally so directed by the terms of the transaction by which the principal was established; except that the principal shall be held for ultimate distribution as determined by the terms of the transaction by which it was established or by law. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 751, § 14, effective April 22. 15-1-457. Apportionment of income. (1) Whenever a tenant shall have the right to income from periodic payments, which shall include rent, interest on loans, and annuities, but shall not include dividends on corporate shares, and such right shall cease and determine by Colorado Revised Statutes 2019 Page 39 of 600 Uncertified Printout death or in any other manner at a time other than the date when such periodic payments should be paid, the tenant or his or her personal representative shall be entitled to that portion of any such income next payable which amounts to the same percentage thereof as the time elapsed from the last due date of such periodic payments to and including the day of the determination of his or her right is of the total period during which such income would normally accrue. (2) The remaining income shall be paid to the person next entitled to income by the terms of the transaction by which the principal was established. But no action shall be brought by the trustee or tenant to recover such apportioned income or any portion thereof until after the day on which it would have become due to the tenant but for the determination of the right of the tenant entitled thereto. (3) The provisions of this section shall apply regardless of whether an ultimate remainderman is specifically named. Likewise, when the right of the first tenant accrues at a time other than the payment dates of such periodic payments, he or she shall only receive that portion of such income which amounts to the same percentage thereof as the time during which he or she has been so entitled is of the total period during which such income would normally accrue. The balance shall be a part of the principal. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 751, § 14, effective April 22. 15-1-458. Corporate dividends and share rights. (1) All dividends on shares of a corporation forming a part of the principal, which shares are payable in the identical class of the shares of the corporation as the stock on which the dividend is paid, shall be deemed principal. Subject to the provisions of this section, all dividends payable otherwise than in such identical class of the shares of the corporation itself, including ordinary and extraordinary dividends and dividends payable in other shares or in other securities or in obligations of corporations other than the declaring corporation, shall be deemed income. Except with respect to investment trusts, regulated investment companies, and trusts qualifying and electing to be taxed under federal law as real estate investment trusts, where the trustees have the option of receiving a dividend either in cash or in the shares of the declaring corporation, it shall be considered as a cash dividend and deemed income, irrespective of the choice made by the trustee. Distributions made from ordinary income by an investment trust, by a regulated investment company, or by a trust qualifying and electing to be taxed under federal laws as a real estate investment trust shall be deemed income. All other distributions made by the company or trust, including distributions from capital gains, depreciation, or depletion, whether in the form of cash or an option to take new stock or cash or an option to purchase additional shares, shall be deemed principal. (2) All rights to subscribe to the shares or other securities or obligations of a corporation accruing on account of the ownership of shares or other securities in such corporation and the proceeds of any sale of such rights shall be deemed principal. All rights to subscribe to the shares or other securities or obligations of a corporation accruing on account of the ownership of shares or other securities in another corporation, and the proceeds of any sale of such rights, shall be deemed income. (3) Where the assets of a corporation are wholly or partially liquidated, amounts paid upon corporate shares as cash dividends declared before such liquidation occurred or as arrears of preferred or guaranteed dividends shall be deemed income; all other amounts paid upon Colorado Revised Statutes 2019 Page 40 of 600 Uncertified Printout corporate shares on disbursement of the corporate assets to the stockholders shall be deemed principal. (4) If a corporation succeeds another by merger, consolidation, or reorganization or otherwise acquires its assets and the corporate shares of the succeeding corporation are issued to the shareholders of the original corporation in like proportion to, or in substitution for, their shares of the original corporation, the two corporations shall be considered a single corporation in applying the provisions of this section, but two corporations shall not be considered a single corporation under this section merely because one owns corporate shares of or otherwise controls or directs the other. (5) In applying this section, the date when a dividend accrues to the person who is entitled to it shall be held to be the date specified by the corporation as the one on which the stockholders entitled thereto are determined, or, in default thereof, the date of declaration of the dividend. (6) All disbursements of corporate assets to the stockholders, whenever made, which are designated by the corporation as a return of capital or division of corporate property shall be deemed principal. (7) Any distribution of shares or other securities or obligations of a corporation, other than the distributing corporation, or the proceeds of sale or other disposition thereof, made as a result of a court decree or final administrative order by a governmental agency ordering the distributing corporation to divest itself of the shares, securities, or other obligations, shall be deemed principal unless the distributing corporation designates that the distribution is wholly or partly in lieu of an ordinary cash dividend, in which case the distribution, to the extent that it is in lieu of the ordinary cash dividend, shall be deemed income. The provisions of this subsection (7) shall take effect on or after March 13, 1963, and shall apply to all estates of tenants or remaindermen then legally effective, whenever created, as well as to all estates of tenants or remaindermen which become legally effective thereafter. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 752, § 14, effective April 22. 15-1-459. Premium and discount bonds. Where any part of the principal consists of bonds or other obligations for the payment of money, they shall be deemed principal at their inventory value, which in the case of a testamentary trust, unless a contrary intention appears from the will, shall be the value at the date of death, or in default thereof at their market value at the time the principal was established, or at their cost where purchased later, regardless of their par or maturity value, and, upon their respective maturities or upon their sale, any loss or gain realized thereon shall fall upon or inure to the principal. If, however, any of such bonds or obligations bears no stated interest but is redeemable at maturity or at a future time at an amount in excess of the amount in consideration of which it was issued, such accretion, as and when realized or realizable, shall be income. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 753, § 14, effective April 22. Colorado Revised Statutes 2019 Page 41 of 600 Uncertified Printout 15-1-460. Principal used in business. (1) Whenever a trustee or a tenant is authorized by the terms of the transaction by which the principal was established, or by law, to use any part of the principal in the continuance of a business that the original owner of the property comprising the principal had carried on, the net profits of such business attributable to such principal shall be deemed income. (2) If such business consists of buying and selling property, the net profits for any period shall be ascertained by deducting, from the gross returns during and the inventory value of the property at the end of such period, the expenses during the inventory value of the property at the beginning of such period. (3) If such business does not consist of buying and selling property, the net income shall be computed in accordance with the customary practice of such business, but not in such a way as to decrease the principal. (4) Any increase in the value of the principal used in such business shall be deemed principal, and all losses in any one calendar year, after the income from such business for that year has been exhausted, shall fall upon the principal. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 753, § 14, effective April 22. 15-1-461. Principal comprising animals. If any part of the principal consists of animals employed in business, the provisions of section 15-1-460 shall apply; and, in other cases where the animals are held as a part of the principal partly or wholly because of the offspring or increase which they are expected to produce, all offspring or increase shall be deemed principal to the extent necessary to maintain the original number of such animals, and the remainder shall be deemed income; and in all other cases such offspring or increase shall be deemed income. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 754, § 14, effective April 22. 15-1-462. Principal subject to depletion. If any part of the principal consists of property other than natural resources, subject to depletion, such as leaseholds, patents, copyrights, and royalty rights, and the trustee or tenant in possession is not under a duty to change the form of the investment of the principal, the full amount of rents, royalties, or return from the property shall be income to the tenant; except that, where the trustee or tenant is under a duty, arising either by law or by the terms of the transaction by which the principal was established, to change the form of the investment, either at once or as soon as it may be done without loss, then the return from such property not in excess of four percent per annum of its fair inventory value, which in the case of a testamentary trust, unless a contrary intention appears from the will, shall be the value at date of death, or, in default of same, its market value at the time the principal was established, or at its cost where purchased later, shall be deemed income and the remainder principal. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 754, § 14, effective April 22. Colorado Revised Statutes 2019 Page 42 of 600 Uncertified Printout 15-1-463. Unproductive estate. (1) If any part of a principal in the possession of a trustee consists of realty or personalty that for more than a year and until disposed of as stated in this section has not produced an average net income of at least one percent per annum of its fair inventory value, which in the case of a testamentary trust, unless a contrary intention appears from the will, shall be the value at date of death, or, in default thereof, its market value at the time the principal was established or of its cost where purchased later, and the trustee is under a duty to change the form of the investment as soon as it may be done without sacrifice of value and such change is delayed, but is made before the principal is finally distributed, then the tenant, or, in case of his or her death, his or her personal representative, shall be entitled to share in the net proceeds received from the property as delayed income to the extent stated in this section. (2) Such income shall be the difference between the net proceeds received from the property and the amount which, had it been placed at simple interest at the rate of four percent per annum for the period during which the change was delayed, would have produced the net proceeds at the time of change, but in no event shall such income be more than the amount by which the net proceeds exceed the fair inventory value of the property, which in the case of a testamentary trust, unless a contrary intention appears from the will, shall be the value at the date of death, or, in default thereof, its market value at the time the principal was established or its cost where purchased later. The net proceeds shall consist of the gross proceeds received from the property less any expenses incurred in disposing of it and less all carrying charges which have been paid out of principal during the period while it has been unproductive. (3) The time the change is delayed starts when the duty to make it first arose, which shall be presumed, in the absence of evidence to the contrary, to be: (a) One year after the trustee first received the property if the property was unproductive at that time; or (b) One year after the property became unproductive. (4) If the tenant has received any income from the property or has had any beneficial use thereof during the period while the change has been delayed, his or her share of the delayed income shall be reduced by the amount of such income received or the value of the use had. (5) In the case of successive tenants, the delayed income shall be divided among them or their representatives according to the length of the period for which each was entitled to income. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 754, § 14, effective April 22. 15-1-464. Disposition of natural resources. (1) If any part of the principal consists of property in lands from which may be taken timber, minerals, oils, gas, or other natural resources, and the trustee or tenant is authorized by law or by the terms of the transaction by which the principal was established to sell, lease, or otherwise develop such natural resources, and no provision is made for the disposition of the net proceeds thereof after the payment of expenses and carrying charges on such property, such net proceeds, if received as rent on a lease, shall be deemed income but, if received as consideration, whether as royalties or otherwise, for the permanent severance of such natural resources from the lands, shall be deemed, to the extent provided in this section, principal to be invested to produce income, and the remainder of such net proceeds shall be deemed income. Of the net proceeds received during any period as Colorado Revised Statutes 2019 Page 43 of 600 Uncertified Printout consideration for permanent severance of a natural resource, the amount to be considered as principal for that period shall be the greater of the following: (a) The amount that bears the same ratio to the fair inventory value of such natural resource, which in the case of a testamentary trust, unless a contrary intention appears in the will, shall be the value at date of death, or, in default thereof, its market value at the time the principal was established, or its cost if purchased later, as the number of units of the natural resource severed during the period bears to the total number of severable units of the natural resource estimated as having existed at the time the principal was established; (b) The amount that bears the same ratio to the estimated value of the natural resource at the time of commencement of severance as the number of units of the natural resources severed during the period bears to the total number of severable units of the natural resource estimated as having existed at the time of commencement of such severance; (c) An amount equal to that percentage of the net proceeds received as consideration for such permanent severance that is allowable as a deduction from gross income for depletion purpose under the federal income tax law then in effect at the time of severance or, if the federal income tax law then in effect makes no provision for the deduction of any stated percentage for depletion, or for any reason is not applicable to such natural resource, then fifteen percent of such net proceeds. Such disposition of net proceeds shall apply whether permanent severance commenced before or after the time the principal was established and without regard to the time when the instrument under which severance is being made was executed. (2) Nothing in this section shall be construed to abrogate or extend any right which may otherwise have accrued by law to a tenant to develop or work such natural resources for his or her own benefit. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 755, § 14, effective April 22. 15-1-464.5. Disposition of natural resources - special applicability. (1) If any part of the principal consists of a right to receive royalties, overriding or limited royalties, working interests, production payments, net profit interests, or other interests in minerals or other natural resources in, on, or under land, the receipts from taking the natural resources from the land shall be allocated as follows: (a) If received as rent on a lease or extension payments on a lease, the receipts are income; (b) If received from a production payment, the receipts are income to the extent of any factor for interest or its equivalent provided in the governing instrument. There shall be allocated to principal the fraction of the balance of the receipts that the unrecovered cost of the production payment bears to the balance owed on the production payment, exclusive of any factor for interest or its equivalent. The receipts not allocated to principal are income. (c) If received as a royalty, overriding or limited royalty, or bonus, or from a working, net profit, or any other interest in minerals or other natural resources, receipts not provided for in paragraph (a) or (b) of this subsection (1) shall be apportioned on a yearly basis in accordance with this paragraph (c) regardless of whether any natural resource was being taken from the land at the time the trust was established. Fifteen percent of the gross receipts, but not to exceed fifty percent of the net receipts remaining after payment of all expenses, direct and indirect, computed Colorado Revised Statutes 2019 Page 44 of 600 Uncertified Printout without allowance for depletion, shall be added to principal as an allowance for depletion. The balance of the gross receipts after payment therefrom of all expenses, direct and indirect, is income. (2) If a trustee, on April 22, 2009, held an item of depletable property of a type specified in this section, he or she shall allocate receipts from the property in the manner used before April 22, 2009, but as to all depletable property acquired after April 22, 2009, by an existing or new trust, the method of allocation provided herein shall be used. (3) This section does not apply to timber, water, soil, sod, dirt, turf, or mosses. (4) (a) Except as provided in paragraph (b) of this subsection (4), this section applies to a trust or estate that is subject to this subpart 7 and shall control over the other provisions of this subpart 7 to the extent that any inconsistency exists between such provisions and this section. (b) (I) In the case of a trust or a probate estate, the trustee or the personal representative may elect to have this section not apply to the trust or the probate estate by giving notice of such election to the beneficiaries of the trust or the probate estate as provided in subsection (5) of this section. (II) In the case of an estate other than a trust, a life tenant or the remainderman may elect to have this section not apply to the estate by giving notice of such election in the same time and manner as provided in section 15-1-454 (3) for an election out of the application of this subpart 7 to the estate. (5) (a) If a trustee or a personal representative makes an election under this section, he or she shall satisfy the requirements set forth in section 15-1-405 for providing notice of the election. (b) If a life tenant or a remainderman makes an election under this section, he or she shall satisfy the requirements set forth in section 15-1-454 (3) for providing notice of the election and recording the election. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 756, § 14, effective April 22. 15-1-465. Expenses - trust estates. (1) All ordinary expenses incurred in connection with the trust estate or with its administration and management, including regularly recurring taxes assessed against any portion of the principal, water rates, premiums on insurance taken upon the estates of both tenant and remainderman, interest on mortgages on the principal, ordinary repairs, a reasonable portion, but not less than one-half, of the trustees' compensation for current management of principal and application of income to the use of tenant, compensation of assistants, and court costs and attorneys' and other fees on regular accountings shall be paid out of income, but such expenses where incurred in disposing of, or as carrying charges on, an unproductive estate, as defined in section 15-1-463, shall be paid out of principal, subject to the provisions of section 15-1-463 (2). (2) All other expenses, including trustees' commissions at trust inception and termination and not more than one-half of trustees' compensation for current management of principal and application of income to the use of the tenant, cost of investing or reinvesting principal, attorneys' fees and other costs incurred in maintaining or defending any action to construe the trust or protect it or the property or assure the title thereof, unless due to the fault or cause of the tenant, and costs of, or assessments for, improvements to property forming part of the principal, Colorado Revised Statutes 2019 Page 45 of 600 Uncertified Printout shall be paid out of principal. Any tax levied by any authority, federal, state, or foreign, upon profit or gain defined as principal under the terms of section 15-1-466 (2) shall be paid out of principal, notwithstanding that said tax may be denominated a tax upon income by the taxing authority. (3) Expenses paid out of income according to subsection (1) of this section that represent regularly recurring charges shall be considered to have accrued from day to day and shall be apportioned on that basis whenever the right of the tenant begins or ends at some date other than the payment date of the expenses. If the expenses to be paid out of income are of an unusual amount, the trustee may distribute them throughout an entire year or part thereof or throughout a series of years. After such distribution, if the right of the tenant ends during the period, the expenses shall be apportioned between tenant and remainderman on the basis of such distribution. (4) If the costs of, or special taxes or assessments for, an improvement representing an addition of value to property held by the trustee as part of principal are paid out of principal, as provided in subsection (2) of this section, the trustee shall reserve out of income and add to the principal each year a sum equal to the cost of the improvement divided by the number of years of the reasonably expected duration of the improvement. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 758, § 14, effective April 22. 15-1-466. Expenses - nontrust estates. (1) The provisions of section 15-1-465, so far as applicable and excepting those provisions concerning costs of, or special taxes or assessments for, improvements to property, shall govern the apportionment of expenses between tenants and remaindermen where no trust has been created; except that such apportionment shall be subject to any legal agreement of the parties or any specific direction of the taxing or other statutes. If either tenant or remainderman has incurred an expense for the benefit of his or her own estate and without the consent or agreement of the other, he or she shall pay such expense in full. (2) Subject to the exceptions described in subsection (1) of this section, the cost of, or special taxes or assessments for, an improvement representing an addition of value to property forming part of the principal shall be paid by the tenant, if such improvement cannot reasonably be expected to outlast the estate of the tenant. In all other cases, a portion thereof only shall be paid by the tenant, while the remainder shall be paid by the remainderman. Such portion shall be ascertained by taking that percentage of the total that is found by dividing the present value of the tenant's estate by the present value of an estate of the same form as that of the tenant; except that, it is limited for a period corresponding to the reasonably expected duration of the improvement. The computation of present values of the estates shall be made on the expectancy basis set forth in the American experience tables of mortality, and no other evidence of duration or expectancy shall be considered. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 758, § 14, effective April 22. 15-1-467. Disposition of net probate income. (1) Subject to the provisions of section 15-1-455, an executor shall, at the time of distribution, pay over to the trustee of any trust, or to Colorado Revised Statutes 2019 Page 46 of 600 Uncertified Printout any other legatee to whom specific property other than money is bequeathed or devised, the net probate income of such property and shall pay over all other net probate income to: (a) The trustee of any trust created out of residue or to which any portion of residue is added; (b) Any legatee for life or years of any portion of the residue; (c) Any legatee of a present, legal, possessory interest in any portion of the residue; and (d) Any trustee of a sum of money under a trust created or added to by the will but not payable out of the residue, in pro rata shares, in accordance with the respective values of the property bequeathed or devised outright or in trust. The values shall be those finally determined for federal estate tax purposes, or, if no such determination is made, the values shall be those at date of death as determined by the executor. Nothing in this subsection (1) shall prevent a court from ordering distribution of any net probate income directly to the beneficiary of a trust. (2) If an executor makes a partial distribution of property to any legatee or trustee, the recipient of such partial distribution shall share in the net probate income collected to the date of distribution, but his or her share in the net probate income later collected by the executor shall be reduced accordingly. (3) The amount of any net probate income distributed by the executor to each trustee or other distributee shall be stated in any order of distribution. (4) A trustee who receives net probate income from an executor shall treat it as income of the trust for which he or she is acting. (5) If net probate income, with respect to which income taxes have been paid by the executor, is distributed, and any of the distributees is a charitable or other tax-exempt organization, and a charitable deduction was allowable on the income tax return of the executor for the taxable year of the executor in which the income was received or accrued, such income taxes paid by the executor shall be allocated among the distributees so that the diminution in such taxes resulting from the charitable deduction allowable to the executor will inure to the benefit of such charitable or exempt organization. (6) If net probate income with respect to which income taxes have been paid by the executor is distributed and includes tax-exempt or partially tax-exempt income or income with respect to which a credit or special deduction is allowable and the will requires such tax-exempt or partially tax-exempt income or income with respect to which a credit or special deduction is allowable to be distributed other than proportionately to the distributees of net probate income, such income taxes shall be allocated among the distributees so that the benefit of such tax exemption, partial tax exemption, credit, or special deduction will inure to the benefit of the distributee of such tax-exempt or partially tax-exempt income or of the income with respect to which a credit or special deduction is allowable. (7) If a trust, whether inter vivos or testamentary, contains provisions whereby, on the happening or the failure to happen of an event, a gift is made of money in trust, or of specific property other than money, in trust or outright, or of any portion of the residue of such trust in further trust, or for life or years, the income of such trust for the period following the happening or failure to happen of such event shall be disposed of by the trustee thereof in the manner, so far as applicable, that would prevail if the trustee of such trust were an executor acting under the provisions of this section. Colorado Revised Statutes 2019 Page 47 of 600 Uncertified Printout (8) This section shall be effective with respect to wills the testators of which die on or after April 18, 1961, to revocable inter vivos trusts the settlors of which die after said date, and to irrevocable inter vivos trusts which are created after said date. Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 759, § 14, effective April 22. PART 5 FIDUCIARY PROPERTY - DEPOSITORY NOMINEES Editor's note: This part 5 was numbered as article 5 of chapter 57, C.R.S. 1963. The substantive provisions of this part 5 were repealed and reenacted in 1977, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this part 5 prior to 1977, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. Cross references: For deposits by a fiduciary, see §§ 15-1-111 and 15-1-112. 15-1-501. Fiduciary property kept separate. Every fiduciary shall keep fiduciary property separate and distinct from such fiduciary's own property and shall not invest or deposit the same with any person, association, or corporation in such fiduciary's own name. Except as provided in this part 5, every fiduciary shall keep the property of each fiduciary account separate and distinct from the property of every other fiduciary account, and all transactions shall be conducted in such fiduciary's name as fiduciary. Source: L. 77: Entire part R&RE, p. 826, § 1, effective July 1. Editor's note: This section is similar to former § 15-1-501 as it existed prior to 1977. 15-1-502. Nominees. Any fiduciary may register or hold the title to fiduciary property in the name of a nominee. Source: L. 77: Entire part R&RE, p. 826, § 1, effective July 1. Editor's note: This section is similar to former § 15-1-501 as it existed prior to 1977. 15-1-503. Fiduciary property deposits. Any fiduciary may deposit fiduciary property with a bank or trust company, including a federal reserve bank, or with a clearing corporation, as defined in section 4-8-102 (a)(5), C.R.S., as depository, and such fiduciary property so deposited may be registered in such depository's name as nominee for the fiduciary or may be registered in the name of a nominee of such depository. Colorado Revised Statutes 2019 Page 48 of 600 Uncertified Printout Source: L. 77: Entire part R&RE, p. 826, § 1, effective July 1. L. 96: Entire section amended, p. 245, § 23, effective July 1. Editor's note: This section is similar to former § 15-1-502 as it existed prior to 1977. 15-1-504. Holding of securities by fiduciary or depository of fiduciary property. Any bank or trust company or clearing corporation acting as a fiduciary or depository of fiduciary property may merge and hold securities held as fiduciary property, without certification as to ownership attached, with other securities held as fiduciary property, in one or more certificates representing securities of the same class of the same issuer. Ownership of such securities may be transferred by bookkeeping entry on the books of the fiduciary or of the depository without physical delivery of certificates representing such securities. Source: L. 77: Entire part R&RE, p. 826, § 1, effective July 1. Editor's note: This section is similar to former § 15-1-503 as it existed prior to 1977. 15-1-505. Records. The records of every fiduciary shall at all times show the ownership of any fiduciary property held by such fiduciary or in the name of its nominee or held in a depository. Source: L. 77: Entire part R&RE, p. 827, § 1, effective July 1. Editor's note: This section is similar to former § 15-1-505 as it existed prior to 1977. 15-1-506. Liability of issuer. No issuer of securities or agent thereof shall be liable for registering or causing to be registered on the books of such issuer any securities in the name of any nominee or, when the transfer is made on the authorization of the nominee, for transferring or causing to be transferred on the books of the issuer any securities theretofore registered by the issuer in the name of any nominee. Source: L. 77: Entire part R&RE, p. 827, § 1, effective July 1. Editor's note: This section is similar to former § 15-1-506 as it existed prior to 1977. 15-1-507. Custodian as fiduciary. For purposes of this part 5, a bank or trust company acting as custodian shall be deemed to be a fiduciary, and property held in custody by a bank or trust company shall be deemed to be fiduciary property. Source: L. 77: Entire part R&RE, p. 827, § 1, effective July 1. Editor's note: This section is similar to former § 15-1-507 as it existed prior to 1977. 15-1-508. Individual and corporate fiduciaries. (1) For purposes of this part 5, a bank or trust company acting as a fiduciary, alone or jointly with any cofiduciary, may take any action Colorado Revised Statutes 2019 Page 49 of 600 Uncertified Printout authorized by this part 5 without regard to the language or provisions, or any limitations, in the will or trust instrument or other instrument establishing the fiduciary relationship. (2) For purposes of this part 5, any fiduciary other than a bank or trust company may take any action authorized by this part 5, unless limited by the language or provisions in the will or trust instrument or other instrument establishing the fiduciary relationship expressing a clear intention that an action otherwise authorized by this part 5 shall be denied to such fiduciary. (3) Nothing in subsection (2) of this section shall be construed to limit the authority of a bank or trust company serving as a cofiduciary with one or more other fiduciaries or serving as a depository to take any action authorized by this part 5 which it could take if serving as sole fiduciary. Source: L. 77: Entire part R&RE, p. 827, § 1, effective July 1. 15-1-509. Fiduciary duty. In the exercise of any of the powers granted in this part 5, a fiduciary has a duty to act reasonably and equitably with due regard for his obligations and responsibilities toward the interests of beneficiaries and creditors and the estate or trust involved and the purposes thereof and with due regard for the manner in which men of prudence, discretion, and intelligence would act in the management of the property of another. Source: L. 77: Entire part R&RE, p. 827, § 1, effective July 1. 15-1-510. Application. This part 5 shall apply to every fiduciary, regardless of the date of the agreement, instrument, or court order by which the fiduciary is appointed. Source: L. 77: Entire part R&RE, p. 827, § 1, effective July 1. PART 6 UNIFORM FIDUCIARY SECURITY TRANSFERS ACT 15-1-601 to 15-1-611. (Repealed) Source: L. 96: Entire part repealed, p. 246, § 25, effective July 1. Editor's note: This part 6 was numbered as article 6 of chapter 57, C.R.S. 1963. For amendments to this part 6 prior to its repeal in 1996, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. PART 7 FIDUCIARY INTERESTS IN ENTITIES 15-1-701. Power to become partner. Subject to the terms of the partnership agreement, if permitted by the trust instrument or will under which the fiduciary serves or by order of a Colorado Revised Statutes 2019 Page 50 of 600 Uncertified Printout court having jurisdiction of the estate or trust, a fiduciary may enter into a partnership agreement and accept the assignment of or otherwise acquire, hold, and dispose of an interest in a partnership and in so doing may become either a general or a limited partner. Source: L. 63: p. 496, § 1. C.R.S. 1963: § 57-7-1. L. 2002: Entire section amended, p. 650, § 2, effective July 1. 15-1-702. Family business interests - maintenance of entity - formation of successor entity. (1) As used in this section, unless the context otherwise requires: (a) "Family" means an individual, such individual's spouse, parents, the descendants of either of such parents or of such spouse, or the spouses of such descendants or any combination of such persons. (b) "Family business" means a business enterprise with respect to which the aggregate interests of the family are substantial in relation to the total outstanding interests in the business enterprise. (c) "Interest" and "interests" include beneficial interests as beneficiaries of any estate or trust and indirect interests through any other form of entity. (d) "Successor entity" includes the entity holding the family business where such entity survives a consolidation, merger, acquisition, or other combination. (2) Any fiduciary acting under a will or trust instrument that evidences an intent to retain an interest in a family business may maintain the interest in any form of entity or successor entity. Such a successor entity may be formed by consolidation, merger, acquisition, or other combination and shall be considered the same enterprise for purposes of maintaining the interest in the family business where the interests of the beneficiaries in the successor entity are substantial. (3) Except as otherwise provided in the instrument under which the fiduciary is acting: (a) A fiduciary may proceed as provided in this subsection (3) with the formation of such a successor entity where the fiduciary believes in good faith that the formation is on a favorable basis considering only the overall interests of the beneficiaries including the maintenance of a substantial interest on the part of the beneficiaries in the enterprise and the value of such interest in the long term. (b) A fiduciary may vote and otherwise deal with respect to interests in the family business as the fiduciary believes in the good faith exercise of the fiduciary's business judgment, under the business judgment rule, to be necessary or appropriate to complete such formation on such a favorable basis. (c) A fiduciary may, in the good faith exercise of such judgment, accept a reduced participation in equity, voting, and other rights and preferences including a reduction in voting rights that results in less than voting control of the successor entity. (d) A fiduciary may proceed without notice to the beneficiaries where disclosure is forbidden by law or where the fiduciary believes in the good faith exercise of such judgment, that nondisclosure is necessary to complete such formation on such a favorable basis. (4) This section shall apply to any interests held by an estate or trust in a family business on or after May 26, 2000, and to the formation of any entity or successor entity completed after May 26, 2000. Colorado Revised Statutes 2019 Page 51 of 600 Uncertified Printout Source: L. 2000: Entire section added, p. 1171, § 1, effective May 26. PART 8 POWERS 15-1-801. Short title. This part 8 shall be known and may be cited as the "Colorado Fiduciaries' Powers Act". Source: L. 67: p. 766, § 1. C.R.S. 1963: § 57-8-1. 15-1-802. Definitions. As used in this part 8, unless the context otherwise requires: (1) "Court" means the district or probate court having jurisdiction over the administration of the estate or trust. (2) "Estate" means the estate of a decedent or a person under disability. (3) (a) "Fiduciary" means the one or more persons designated in a will, trust instrument, or otherwise, whether corporate or natural persons and including successors and substitutes, who are acting in any of the following capacities: (I) Personal representatives, including executors, administrators, administrators with the will annexed (cum testamento annexo), administrators in succession acting under a will (de bonis non), ancillary administrators acting under a will, and ancillary executors; (II) Special administrators; (III) Conservators; and (IV) Trustees. (b) "Fiduciary" does not include a guardian, special fiduciary, or public administrator, except when the public administrator has been appointed a fiduciary as defined in this subsection (3). (4) "Trust" means any express trust created by a will, trust instrument, or other instrument, whereby there is imposed upon a trustee the duty to administer a trust asset, for the benefit of a named or otherwise described income or principal beneficiary, or both. A trust shall not include trusts for the benefit of creditors, resulting or constructive trusts, business trusts where certificates of beneficial interest are issued to the beneficiary, investment trusts, voting trusts, security instruments such as deeds of trust and mortgages, trusts created by the judgment or decree of a court, liquidation or reorganization trusts, or trusts for the sole purpose of paying dividends, interest, interest coupons, salaries, wages, pensions, or profits, instruments wherein one or more persons are mere nominees for another, or trusts created in deposits in any banking institution or savings and loan institution. (5) "Will" means a will of a decedent and includes a testament or codicil. Source: L. 67: p. 766, § 1. C.R.S. 1963: § 57-8-2. L. 73: p. 1647, § 7. L. 75: (3) R&RE, p. 588, § 7, effective July 1. 15-1-803. Powers conferred on fiduciaries. Fiduciaries have all powers conferred upon them by the provisions of this part 8, unless limited by the language or provisions in the will or trust instrument expressing a clear intention that powers conferred under this part 8 shall be Colorado Revised Statutes 2019 Page 52 of 600 Uncertified Printout denied to the fiduciary. They have, in addition to the powers conferred in this part 8, such other or further powers as are set forth in the will or trust instrument or as are provided by other statutes or by court rule or order. If any power specifically conferred on a fiduciary by the will or trust instrument conflicts with any power conferred by this part 8, the fiduciary shall be deemed to have only the power specifically conferred by the will or trust instrument and not the conflicting power conferred by this part 8. Provisions in articles 10 to 20 of this title concerning the exercise of powers in the administration of an estate by an executor having powers under a will shall apply to executors having powers conferred under this part 8. Source: L. 67: p. 767, § 1. C.R.S. 1963: § 57-8-3. L. 73: p. 1648, § 8. 15-1-804. Powers available. (1) During the period of administration of the estate or trust and until final distribution, a fiduciary has the power to perform, without court authorization, every act reasonably necessary to administer the estate or trust, including but not limited to the powers specified in subsection (2) of this section. In the exercise of any of his powers, whether derived from this part 8 or from any other source, a fiduciary has a duty to act reasonably and equitably with due regard for his obligations and responsibilities toward the interests of beneficiaries and creditors, the estate or trust involved, and the purposes thereof and with due regard for the manner in which men of prudence, discretion, and intelligence would act in the management of the property of another. (2) Subject to subsection (1) of this section, a fiduciary has the power: (a) To receive, take possession of, recover, and preserve the assets of the estate or trust, both real and personal, coming to his attention or knowledge and the rents, issues, and profits arising therefrom; (b) To retain the initial assets of the estate or trust without liability for loss, depreciation, or diminution in value resulting from such retention until, in the judgment of the fiduciary, disposition of such assets should be made; (c) To accept additions to the estate or trust, not only from the estate of the decedent or the settlor of the trust, but also from other sources; (d) To acquire an undivided interest in an estate or trust asset in which the fiduciary, in a fiduciary or individual capacity, also holds an undivided interest; (e) To invest and reinvest assets of the estate or trust, as provided by law; (f) To effect and keep in force fire, rent, title, liability, casualty, or other insurance to protect the assets of the estate or trust and the fiduciary against hazards usually insured against; (g) With respect to real property or any interest in real property owned by the estate or trust, except where such real property, or interest in real property, is specifically devised: (I) To grant options to sell and to sell and convey the same at public or private sale, for cash or on credit, upon fair, reasonable, and equitable terms; (II) To lease the same, even for a term extending beyond the duration of the administration of the estate or trust, and, in any such case, to include or exclude the right to explore for and remove mineral or other natural resources, and in connection with mineral leases to enter into pooling and unitization agreements; (III) To encumber the same; (IV) To make repairs or alterations in buildings, or other structures; to improve or demolish any improvements; to raze existing party walls or buildings and erect new party walls Colorado Revised Statutes 2019 Page 53 of 600 Uncertified Printout or buildings together with owners of adjoining or adjacent property or to enter into agreements with respect thereto; to subdivide, develop, and dedicate to public use; to make or obtain the vacation of public plats; to adjust boundaries; to adjust differences in valuation on exchange or partition by giving or receiving money or money's worth; and to dedicate and grant easements to public use without consideration; (h) With respect to personal property or any interest in personal property, owned by the estate or trust, except where such personal property is specifically bequeathed: (I) To grant options to sell and to sell the same at public or private sale, for cash or on credit, upon fair, reasonable, and equitable terms; (II) To lease personal property, even for a term extending beyond the duration of the administration of the estate or trust; (III) To encumber the same; (IV) To make repairs to the personal property of the estate or trust; (i) With respect to any indebtedness owed to the estate or trust, secured or unsecured: (I) To continue the same upon and after maturity, with or without renewal or extension, upon such terms as the fiduciary deems advisable; (II) To foreclose any security for such indebtedness, to purchase any property securing such indebtedness, and to acquire any property by conveyance from the debtor in lieu of foreclosure; (j) To perform, in the case of an estate, any and all valid and legally enforceable executory contracts to which at the time of his death the decedent was a party and which at the time of such death had not been fully performed by such decedent and to discharge all obligations of the estate arising under or by reason of such contracts if such obligations are legally enforceable against the estate; (k) To enter into contracts which are reasonably incident to the administration of the estate or trust; (l) To continue or to participate in the operation of any business activity or enterprise, including a sole proprietorship or partnership, existing at the inception of the estate or trust (in the case of an estate having due regard for those having claims against the estate) and to incorporate or otherwise change its form; (m) To deposit funds of the estate or trust in one or more banks, including the banking department of a corporate fiduciary; (n) To deposit fiduciary property with others, to the extent permitted by part 5 of this article, so long as the cost thereof does not constitute an additional charge against the estate or trust but is payable out of compensation otherwise properly payable to the fiduciary; (o) To hold title to fiduciary property in the name of a nominee, without disclosure of the estate or trust, to the extent permitted by part 5 of this article; (p) To borrow money from any source, including the commercial department of a corporate fiduciary, with any such indebtedness being repayable solely from assets of the estate or trust and to pledge or encumber estate or trust assets as security for such loans; (q) To advance money for the protection of the estate, or the trust, or the assets thereof and for all expenses, losses, and liabilities incurred in or by the collection, care, administration, or protection of the estate, or trust, or the assets thereof. For all such advances, the fiduciary shall have a lien on the estate or trust assets and may reimburse himself with interest at a reasonable rate out of the estate or trust. Colorado Revised Statutes 2019 Page 54 of 600 Uncertified Printout (r) To pay, contest, or otherwise settle claims by or against the estate or trust, including taxes, assessments, and expenses, by compromise, arbitration, or otherwise; (s) To determine all matters of estate and trust accounting as the fiduciary deems to be proper and equitable; (t) In the case of a trust, to advance trust income to or for the use of a beneficiary, for which advance the fiduciary shall have a lien on the future benefits of such beneficiary from the trust; (u) To make distributions in kind, in money, or partially in each, at fair market values on the effective date of distribution, as determined by the fiduciary, and without requiring pro rata distribution of specific assets; (v) In the case of a trust, to abandon, charge off, or otherwise dispose of any property held by or on behalf of the trust which is of no value or of insufficient value to justify collection, care, administration, or protection; (w) To execute and deliver all legal instruments which are necessary or appropriate for the administration of the estate or trust; (x) (I) To employ attorneys or other advisors to advise or assist the fiduciary in the performance of his or her duties or, instead of acting personally, to employ one or more agents to do any ministerial act required to be done by the fiduciary in the performance of his or her duties; (II) In accordance with section 15-1.1-109 of the "Colorado Uniform Prudent Investor Act", to delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances; (y) In the case of the survivors of the holders of a power given to or imposed upon two or more fiduciaries, to exercise or perform such power, unless the exercise of such power would be contrary to any express provision of the will, trust instrument, or other instrument; (z) As successor or substitute fiduciary, to succeed to all of the powers and duties of an original, successor, or prior substitute fiduciary, unless contrary to any express provision of the will, trust instrument, or other instrument; (aa) To vote in person or by proxy shares of stock or other securities which are assets of the estate or trust; (bb) To pay calls, assessments, and any other sums chargeable to or accruing against or on account of shares of stock or other securities which are assets of the estate or trust whenever such payments may be legally enforceable against the fiduciary or any property of the estate or trust or whenever the fiduciary deems payment expedient and for the best interests of the estate or trust; (cc) To sell or exercise stock subscription or conversion rights, participate in foreclosures, reorganizations, consolidations, mergers, or liquidations; to enter into voting trust agreements or other similar arrangements; and to consent to corporate sales, leases, and encumbrances. In the exercise of such powers, the fiduciary shall be authorized, whenever he deems such course expedient, to deposit stocks or other securities which are assets of the estate or trust with any protective or other similar committee or with voting trustees under such terms and conditions respecting the deposit thereof as the fiduciary may approve. (dd) In the case of a trustee, to hold the assets of two or more trusts or parts of such trusts created by the same instrument or by two or more instruments if the trust provisions are substantially similar, as an undivided whole, without separation as between the assets of such Colorado Revised Statutes 2019 Page 55 of 600 Uncertified Printout trusts or parts of such trusts; but such separate trusts or parts of such trusts shall have undivided interests in such assets; and no such holding shall defer the vesting of any estate in possession or otherwise; (ee) In the case of an estate, to join with the surviving spouse, his conservator, his guardian, the executor of his will, or the administrator of his estate, in the execution and filing of a joint income tax return for any period prior to the death of a decedent for which he has not filed a return, a federal gift tax return on gifts made by the decedent's surviving spouse, or a Colorado gift tax return on gifts made before January 1, 1980, by the decedent's surviving spouse, and to consent to said gifts being made one-half by the decedent, for any period prior to a decedent's death, and to pay such taxes thereon as are chargeable to the decedent; (ff) With respect to stock of a corporation held in an estate or trust where the powers of investment conferred upon the fiduciary by the governing instrument or by this part 8 include the power to retain assets initially contributed, or subsequently added from the estate of the decedent or by the settlor of the trust or from any other source, to retain such stock, to exchange or convert such stock for the stock or other securities of an affiliate of the corporation issuing such stock, and to retain such new stock and other securities. For the purposes of this paragraph (ff), "corporation" includes the corporate fiduciary as well as any other corporation, and "affiliate" of a corporation means any corporation controlling, controlled by, or under common control with such corporation, or any corporation formed as a result of or for the purpose of effectuating any merger, consolidation, or reorganization of such corporation. The powers conferred by this paragraph (ff) are hereby conferred upon the fiduciaries of all estates and trusts, unless otherwise limited by language or provisions in the will or trust agreement expressing a clear intention to the contrary. (gg) In the case of a bank acting as a corporate fiduciary, to invest fiduciary funds awaiting investment or distribution in short-term investments, including, but not limited to, a collective investment fund. A bank acting as a corporate fiduciary may also deposit fiduciary funds awaiting investment or distribution in the commercial department of such bank or in an affiliate bank. For the purposes of this paragraph (gg), the term "bank" includes a state bank or bank and trust company which is chartered by this state or as a national bank. (hh) To grant a conservation easement in gross, as defined in section 38-30.5-102, C.R.S., whether for consideration or gratuitously; except that, if such grant is for less than fair market value, the consent of interested persons, as defined in section 15-10-201 (27), shall be obtained in writing or an order of the court shall be obtained after notice to interested persons, unless a will or trust instrument directs, permits, or requires a donation of a conservation easement in gross, in which case no such consent or order shall be required; (ii) Subject to the terms of the documents controlling the entity concerned, to retain or acquire interests in any entity in which the fiduciary does not have general liability, regardless of form, including but not limited to any partnership, corporation, limited liability company, and joint venture, and to become a shareholder, partner, member, or joint venturer. Source: L. 67: p. 767, § 1. C.R.S. 1963: § 57-8-4. L. 70: p. 196, § 1. L. 73: p. 1648, § 9. L. 77: (2)(n) and (2)(o) amended, p. 827, § 2, effective July 1. L. 79: (2)(u) amended, p. 656, § 20, effective July 1. L. 81: (2)(ee) amended, p. 1885, § 6, effective May 27; (2)(g)(I) and (2)(g)(II) amended, p. 631, § 8, effective July 1. L. 92: (2)(gg) added, p. 1991, § 1, effective Colorado Revised Statutes 2019 Page 56 of 600 Uncertified Printout April 16. L. 95: (2)(x) amended, p. 312, § 3, effective July 1. L. 99: (2)(hh) added, p. 70, § 1, effective August 4. L. 2002: (2)(ii) added, p. 650, § 3, effective July 1. 15-1-805. Powers of fiduciary conferred by court. The court having jurisdiction of the estate or trust may authorize the fiduciary to exercise any power not otherwise held by the fiduciary which, in the judgment of the court, is necessary for the proper collection, care, administration, and protection of the estate or the trust. Source: L. 67: p. 770, § 1. C.R.S. 1963: § 57-8-5. 15-1-806. Third persons protected in dealing with fiduciary. With respect to a third person dealing with a fiduciary or assisting a fiduciary in the conduct of a transaction, proper exercise of his powers by the fiduciary is to be presumed, and such third person shall not be bound to inquire whether the fiduciary has power to act or is properly exercising such powers, nor shall such third person be bound to see to the proper application of estate or trust assets paid or delivered to the fiduciary. Source: L. 67: p. 770, § 1. C.R.S. 1963: § 57-8-6. 15-1-807. Applicability. This part 8 shall apply to all trusts existing on January 1, 1968, which are later amended to make applicable this part 8, and to all estates and trusts which may come into existence after January 1, 1968. Source: L. 67: p. 771, § 1. C.R.S. 1963: § 57-8-7. PART 9 DISCLAIMER OF SUCCESSION - NONTESTAMENTARY INSTRUMENTS 15-1-901 to 15-1-907. (Repealed) Editor's note: (1) This part 9 was numbered as article 9 of chapter 57, C.R.S. 1963. For amendments to this part 9 prior to its repeal in 1995, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. (2) Section 15-1-907 provided for the repeal of this part 9, effective July 1, 1995. (See L. 94, p. 1041.) PART 10 CHARITABLE, EDUCATIONAL, RELIGIOUS, AND BENEVOLENT TRUSTS Cross references: For testamentary additions to trusts, see § 15-11-511. Colorado Revised Statutes 2019 Page 57 of 600 Uncertified Printout 15-1-1001. Legislative declaration. It is the purpose of this part 10 to preserve the intent of testators and grantors of testamentary and inter vivos trusts created prior to and after June 2, 1971, for charitable, educational, religious, and benevolent purposes, by minimizing the imposition of federal income and excise taxes, and federal estate and gift taxes, imposed upon the assets of such trusts, and thereby preserving the maximum amount of the trust assets for the charitable, educational, religious, and benevolent purposes for which they were intended. The attorney general of this state shall perform such acts as, in his or her opinion, will result in the effectuation of this declaration of purpose. Source: L. 71: p. 589, § 1. C.R.S. 1963: § 57-10-1. L. 73: p. 638, § 1. L. 2016: Entire section amended, (HB 16-1094), ch. 94, p. 266, § 9, effective August 10. 15-1-1002. Prohibition of certain acts - amendment of governing instrument. (1) In the administration of any trust which is a private foundation as defined in section 509 of the federal "Internal Revenue Code of 1986", a charitable trust as defined in section 4947 (a)(1) of the federal "Internal Revenue Code of 1986", or a split-interest trust as defined in section 4947 (a)(2) of the federal "Internal Revenue Code of 1986", notwithstanding any provisions to the contrary in the governing instrument or in any other law of this state, and except as otherwise provided by court decree entered on or after June 2, 1971, the following acts shall be prohibited: (a) Engaging in any act of "self-dealing", as defined in section 4941 (d) of the federal "Internal Revenue Code of 1986", which would give rise to any liability for the tax imposed by section 4941 (a) of the federal "Internal Revenue Code of 1986"; (b) Retaining any "excess business holdings", as defined in section 4943 (c) of the federal "Internal Revenue Code of 1986", which would give rise to any liability for the tax imposed by section 4943 (a) of the federal "Internal Revenue Code of 1986"; (c) Making any investments which would jeopardize the carrying out of any of the exempt purposes of the trust, within the meaning of section 4944 of the federal "Internal Revenue Code of 1986", so as to give rise to any liability for the tax imposed by section 4944 (a) of the federal "Internal Revenue Code of 1986"; and (d) Making any "taxable expenditure", as defined in section 4945 (d) of the federal "Internal Revenue Code of 1986", which would give rise to any liability for the tax imposed by section 4945 (a) of the federal "Internal Revenue Code of 1986". (2) The provisions of subsection (1) of this section shall not apply either to those splitinterest trusts or to amounts thereof which are not subject to the prohibitions applicable to private foundations by reason of the provisions of section 4947 of the federal "Internal Revenue Code of 1986". (3) Notwithstanding any provisions to the contrary in the governing instrument or in any other law of this state, the trustee of any charitable trust as defined in section 4947 (a)(1) or 4947 (a)(2) of the federal "Internal Revenue Code of 1986", with the consent of all the beneficiaries under the governing instrument, may, without application to any court and either before or after the funding of such trust, amend the governing instrument to conform to the provisions of sections 508 (e), 664, 2055 (e), and 2522 (c) of the federal "Internal Revenue Code of 1986", to the extent applicable, by executing a written amendment to the trust for that purpose. Consent shall not be required as to individual beneficiaries not living at the time of amendment or as to charitable beneficiaries not named or not in existence at the time of amendment. The possibility Colorado Revised Statutes 2019 Page 58 of 600 Uncertified Printout of beneficial interests arising after the amendment of the governing instruments shall not defeat the ability to amend. In the case of an individual beneficiary not competent to give consent, the consent of such beneficiary's guardian or conservator, if any, or the consent of a guardian ad litem appointed by a court of competent jurisdiction is treated as the consent of the beneficiary. A copy of the proposed amendment, executed by the trustee and consented to by all beneficiaries whose consent is required under this subsection (3), must be delivered in person or by registered mail to the attorney general. The attorney general may, within sixty days after such receipt, indicate by registered mail to the trustee his or her specific objections to such proposed amendment, in which event the provisions of subsection (4) of this section apply if he or she does not withdraw his or her objections. In the case of any amendment to a trust created by will or to a trust created by inter vivos instrument, unless otherwise provided, the amendment applies as of the date of death of the decedent or as of the date of gift. (4) In the event that all such trustees and beneficiaries under the governing instrument do not consent to such amendment or in the event that there are no named beneficiaries, any court of competent jurisdiction shall have the power to amend the governing instrument in accordance with subsection (3) of this section upon petition of the trustee or any beneficiary and upon a subsequent finding by the court that the testator's or the grantor's intention would not be defeated by such amendment. A copy of such petition shall be delivered in person or by registered mail to the attorney general. (5) Unless otherwise expressly provided in the governing instrument, any devise, bequest, or transfer in a testamentary or revocable inter vivos trust for religious, educational, charitable, or benevolent uses to be determined by the trustee or any other person shall be made only to organizations and for purposes within the meaning of section 2055 (a) of the federal "Internal Revenue Code of 1986". Source: L. 71: p. 589, § 1. C.R.S. 1963: § 57-10-2. L. 73: p. 638, § 2. L. 2000: (1), (2), (3), and (5) amended, p. 1844, § 25, effective August 2. L. 2016: (3) amended, (HB 16-1094), ch. 94, p. 266, § 10, effective August 10. 15-1-1003. Requirement for distribution of certain amounts. In the administration of any trust which is a private foundation, as defined in section 509 of the federal "Internal Revenue Code of 1986", or which is a charitable trust, as defined in section 4947 (a)(1) of the federal "Internal Revenue Code of 1986", there shall be distributed, for the purposes specified in the trust instrument, for each taxable year, amounts at least sufficient to avoid liability for the tax imposed by section 4942 (a) of the federal "Internal Revenue Code of 1986". No trustee of such a trust shall be required to reimburse the trust from his own property for the amount of any liability for such tax which is incurred by the trust if the trustee acted in a prudent manner and in good faith. No trustee of such a trust shall be required to reimburse the trust from his own property for any amount which he, acting prudently and in good faith, distributes from the trust, believing it to be required to be distributed in order to avoid the liability for such tax, but which later is determined not to have been required to be distributed for that purpose. Source: L. 71: p. 590, § 1. C.R.S. 1963: § 57-10-3. L. 2000: Entire section amended, p. 1845, § 26, effective August 2. Colorado Revised Statutes 2019 Page 59 of 600 Uncertified Printout 15-1-1004. Applicability of sections 15-1-1002 and 15-1-1003. The provisions of sections 15-1-1002 and 15-1-1003 shall not apply to any trust to the extent that a court of competent jurisdiction shall determine that such application would be contrary to the terms of the instrument governing such trust and that the terms of such instrument may not properly be changed to conform to such sections. Source: L. 71: p. 590, § 1. C.R.S. 1963: § 57-10-4. 15-1-1005. Rights and powers of courts and attorney general not impaired. Nothing in this part 10 shall impair the rights and powers of the courts or the attorney general of this state with respect to any trust. Source: L. 71: p. 590, § 1. C.R.S. 1963: § 57-10-5. 15-1-1006. References to "Internal Revenue Code of 1954". All references to sections of the "Internal Revenue Code of 1954" refer to the "Internal Revenue Code of 1954" as it exists on June 2, 1971; except that all references to the "Internal Revenue Code of 1954" in section 151-1002 (3) and (5) refer to the "Internal Revenue Code of 1954" as it exists on April 19, 1973. Source: L. 71: p. 590, § 1. C.R.S. 1963: § 57-10-6. L. 73: p. 639, § 3. 15-1-1007. Application of part 10. This part 10 shall apply to all trusts established after December 31, 1969, with the exceptions contained in section 4947 (a)(2) of the federal "Internal Revenue Code of 1986". This part 10 shall also apply to all trusts established before January 1, 1970, with the exceptions contained in section 508 (e)(2) and section 4947 (a)(2) of the federal "Internal Revenue Code of 1986". Section 15-1-1002 (3) to (5) shall apply in the case of all decedents dying after December 31, 1969, and in the case of all irrevocable inter vivos trusts created after July 31, 1969. Source: L. 71: p. 591, § 1. C.R.S. 1963: § 57-10-7. L. 73: p. 639, § 4. L. 2000: Entire section amended, p. 1846, § 27, effective August 2. PART 11 UNIFORM PRUDENT MANAGEMENT OF INSTITUTIONAL FUNDS ACT Editor's note: This part 11 was numbered as article 26 of chapter 31, C.R.S. 1963, and was not amended prior to 2008. The substantive provisions of this part 11 were repealed and reenacted in 2008, resulting in the addition, relocation, and elimination of sections as well as subject matter. For the text of this part 11 prior to 2008, consult the 2007 Colorado Revised Statutes. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this part 11, see the comparative tables located in the back of the index. Colorado Revised Statutes 2019 Page 60 of 600 Uncertified Printout 15-1-1101. Short title. This part 11 shall be known and may be cited as the "Uniform Prudent Management of Institutional Funds Act". Source: L. 2008: Entire part R&RE, p. 559, § 1, effective September 1. Editor's note: This section is similar to former § 15-1-1101 as it existed prior to 2008. 15-1-1102. Definitions. As used in this part 11, unless the context otherwise requires: (1) "Charitable purpose" means the relief of poverty, the advancement of education or religion, the promotion of health, or any other charitable or eleemosynary purpose. (2) "Endowment fund" means an institutional fund or part thereof that, under the terms of a gift instrument, is not wholly expendable by the institution on a current basis. The term does not include assets that an institution designates as an endowment fund for its own use. (3) "Gift instrument" means a record or records, including an institutional solicitation, under which property is granted to, transferred to, or held by an institution as an institutional fund. (4) "Institution" means: (A) A person, other than an individual, organized and operated exclusively for charitable purposes; (B) A government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose; or (C) A trust that had both charitable and noncharitable interests, after all noncharitable interests have terminated. (5) "Institutional fund" means a fund held by an institution exclusively for charitable purposes. The term does not include funds held by the public employees' retirement association created by article 51 of title 24, C.R.S., or: (A) Program-related assets; (B) A fund held for an institution by a trustee that is not an institution; or (C) A fund in which a beneficiary that is not an institution has an interest, other than an interest that could arise upon violation or failure of the purposes of the fund. (6) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. (7) "Program-related asset" means an asset held by an institution primarily to accomplish a charitable purpose of the institution and not primarily for investment. (8) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. Source: L. 2008: Entire part R&RE, p. 559, § 1, effective September 1. L. 2009: IP(5) amended, (SB 09-282), ch. 288, p. 1398, § 61, effective January 1, 2010. Editor's note: This section is similar to former § 15-1-1103 as it existed prior to 2008. 15-1-1103. Standard of conduct in managing and investing institutional fund. (a) Subject to the intent of a donor expressed in a gift instrument, an institution, in managing and Colorado Revised Statutes 2019 Page 61 of 600 Uncertified Printout investing an institutional fund, shall consider the charitable purposes of the institution and the purposes of the institutional fund. (b) In addition to complying with the duty of loyalty imposed by law other than this part 11, each person responsible for managing and investing an institutional fund shall manage and invest the institutional fund in good faith and with the care an ordinarily prudent person in a like position would exercise under similar circumstances. (c) In managing and investing an institutional fund, an institution: (1) May incur only costs that are appropriate and reasonable in relation to the assets, the purposes of the institution, and the skills available to the institution; and (2) Shall make a reasonable effort to verify facts relevant to the management and investment of the institutional fund. (d) An institution may pool two or more institutional funds for purposes of management and investment. (e) Except as otherwise provided by a gift instrument, the following rules apply: (1) In managing and investing an institutional fund, the following factors, if relevant, must be considered: (A) General economic conditions; (B) The possible effect of inflation or deflation; (C) The expected tax consequences, if any, of investment decisions or strategies; (D) The role that each investment or course of action plays within the overall investment portfolio of the institutional fund; (E) The expected total return from income and the appreciation of investments; (F) Other resources of the institution; (G) The needs of the institution and the institutional fund to make distributions and to preserve capital; and (H) An asset's special relationship or special value, if any, to the charitable purposes of the institution. (2) Management and investment decisions about an individual asset must be made not in isolation but rather in the context of the institutional fund's portfolio of investments as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the institutional fund and to the institution. (3) Except as otherwise provided by law other than this part 11, an institution may invest in any kind of property or type of investment consistent with this section. (4) An institution shall diversify the investments of an institutional fund unless the institution reasonably determines that, because of special circumstances, the purposes of the institutional fund are better served without diversification. (5) Within a reasonable time after receiving property, an institution shall make and carry out decisions concerning the retention or disposition of the property or to rebalance a portfolio, in order to bring the institutional fund into compliance with the purposes, terms, and distribution requirements of the institution as necessary to meet other circumstances of the institution and the requirements of this part 11. (6) A person that has special skills or expertise, or is selected in reliance upon the person's representation that the person has special skills or expertise, has a duty to use those skills or that expertise in managing and investing institutional funds. Colorado Revised Statutes 2019 Page 62 of 600 Uncertified Printout Source: L. 2008: Entire part R&RE, p. 560, § 1, effective September 1. Editor's note: This section is similar to former §§ 15-1-1106 and 15-1-1108 as they existed prior to 2008. 15-1-1104. Appropriation for expenditure of accumulation of endowment fund rules of construction. (a) Subject to the intent of a donor expressed in the gift instrument, an institution may appropriate for expenditure or accumulate so much of an endowment fund as the institution determines is prudent for the uses, benefits, purposes, and duration for which the endowment fund is established. Unless stated otherwise in the gift instrument, the assets in an endowment fund are donor-restricted assets until appropriated for expenditure by the institution. In making a determination to appropriate or accumulate, the institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, and shall consider, if relevant, the following factors: (1) The duration and preservation of the endowment fund; (2) The purposes of the institution and the endowment fund; (3) General economic conditions; (4) The possible effect of inflation or deflation; (5) The expected total return from income and the appreciation of investments; (6) Other resources of the institution; and (7) The investment policy of the institution. (b) To limit the authority to appropriate for expenditure or accumulate under subsection (a) of this section, a gift instrument must specifically state the limitation. (c) Terms in a gift instrument designating a gift as an endowment, or a direction or authorization in the gift instrument to use only "income", "interest", "dividends", or "rents, issues, or profits", or "to preserve the principal intact", or words of similar import: (1) Create an endowment fund of permanent duration unless other language in the gift instrument limits the duration or purpose of the endowment fund; and (2) Do not otherwise limit the authority to appropriate for expenditure or accumulate under subsection (a) of this section. Source: L. 2008: Entire part R&RE, p. 562, § 1, effective September 1. Editor's note: This section is similar to former §§ 15-1-1104 and 15-1-1105 as they existed prior to 2008. 15-1-1105. Delegation of management and investment functions. (a) Subject to any specific limitation set forth in a gift instrument or in law other than this part 11, an institution may delegate to an external agent the management and investment of an institutional fund to the extent that an institution could prudently delegate under the circumstances. An institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, in: (1) Selecting an agent; (2) Establishing the scope and terms of the delegation, consistent with the purposes of the institution and the institutional fund; and Colorado Revised Statutes 2019 Page 63 of 600 Uncertified Printout (3) Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the scope and terms of the delegation. (b) In performing a delegated function, an agent owes a duty to the institution to exercise reasonable care to comply with the scope and terms of the delegation. (c) An institution that complies with subsection (a) of this section is not liable for the decisions or actions of an agent to which the function was delegated. (d) By accepting delegation of a management or investment function from an institution that is subject to the laws of this state, an agent submits to the jurisdiction of the courts of this state in all proceedings arising from or related to the delegation or the performance of the delegated function. (e) An institution may delegate management and investment functions to its committees, officers, or employees as authorized by law of this state other than this part 11. Source: L. 2008: Entire part R&RE, p. 563, § 1, effective September 1. Editor's note: This section is similar to former § 15-1-1107 as it existed prior to 2008. 15-1-1106. Release or modification of restrictions on management, investment, or purpose. (a) If the donor consents in a record, an institution may release or modify, in whole or in part, a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund. A release or modification may not allow an institutional fund to be used for a purpose other than a charitable purpose of the institution. (b) The court, upon application of an institution, may modify a restriction contained in a gift instrument regarding the management or investment of an institutional fund if the restriction has become impracticable or wasteful, if it impairs the management or investment of the institutional fund, or if, because of circumstances not anticipated by the donor, a modification of a restriction will further the purposes of the institutional fund. The institution shall notify the attorney general of the application, and the attorney general must be given an opportunity to be heard. To the extent practicable, any modification must be made in accordance with the donor's probable intention. (c) If a particular charitable purpose or a restriction contained in a gift instrument on the use of an institutional fund becomes unlawful, impracticable, impossible to achieve, or wasteful, the court, upon application of an institution, may modify the purpose of the institutional fund or the restriction on the use of the institutional fund in a manner consistent with the charitable purposes expressed in the gift instrument. The institution shall notify the attorney general of the application, and the attorney general must be given an opportunity to be heard. (d) If an institution determines that a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund is unlawful, impracticable, impossible to achieve, or wasteful, the institution, sixty days after notification to the attorney general, may release or modify the restriction, in whole or part, if: (1) The institutional fund, subject to the restriction, has a total value of less than one hundred thousand dollars; except that the dollar limit established in this paragraph (1) shall be adjusted for inflation in accordance with the annual percentage change in the United States department of labor, bureau of labor statistics, consumer price index for Denver-AuroraLakewood for all items and all urban consumers, or its applicable predecessor or successor Colorado Revised Statutes 2019 Page 64 of 600 Uncertified Printout index. On or before January 1, 2010, and each even-numbered year thereafter, the attorney general shall calculate the adjusted dollar amount for the next two-year cycle using inflation for the prior two calendar years as of the date of the calculation. The adjusted exemption shall be rounded upward to the nearest one-hundred-dollar increment. The attorney general shall certify the amount of the adjustment for the next two-year cycle and shall publish the amount on the attorney general's website. (2) More than twenty years have elapsed since the institutional fund was established; and (3) The institution uses the property in a manner consistent with the charitable purposes expressed in the gift instrument. Source: L. 2008: Entire part R&RE, p. 563, § 1, effective September 1. L. 2018: (d)(1) amended, (HB 18-1375), ch. 274, p. 1697, § 11, effective May 29. Editor's note: This section is similar to former § 15-1-1109 as it existed prior to 2008. 15-1-1107. Reviewing compliance. Compliance with this part 11 is determined in light of the facts and circumstances existing at the time a decision is made or action is taken, and not by hindsight. Source: L. 2008: Entire part R&RE, p. 564, § 1, effective September 1. 15-1-1108. Application to existing institutional funds. This part 11 applies to institutional funds existing on or established after September 1, 2008. As applied to institutional funds existing on September 1, 2008, this part 11 governs only decisions made or actions taken on or after said date. Source: L. 2008: Entire part R&RE, p. 565, § 1, effective September 1. 15-1-1109. Relation to "Electronic Signatures in Global and National Commerce Act". This part 11 modifies, limits, and supersedes the "Electronic Signatures in Global and National Commerce Act", 15 U.S.C. sec. 7001 et seq., but does not modify, limit, or supersede section 101 (a) of that act, 15 U.S.C. sec. 7001 (a), or authorize electronic delivery of any of the notices described in section 103 (b) of that act, 15 U.S.C. sec. 7003 (b). Source: L. 2008: Entire part R&RE, p. 565, § 1, effective September 1. 15-1-1110. Uniformity of application and construction. In applying and construing this part 11, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. Source: L. 2008: Entire part R&RE, p. 565, § 1, effective September 1. Editor's note: This section is similar to former § 15-1-1102 as it existed prior to 2008. PART 12 Colorado Revised Statutes 2019 Page 65 of 600 Uncertified Printout LIFE ESTATE IN PROPERTY OF SURVIVING SPOUSE 15-1-1201. Life estate in property - rights of surviving spouse. (1) Unless the instrument provides otherwise, any devise of a life estate in property to a surviving spouse by a decedent spouse shall entitle the surviving spouse to: (a) All income for life from the entire interest in or specific portion of the property, payable annually or at more frequent intervals; (b) Exclusive beneficial enjoyment of the property during his life, including such income or use of the property as is consistent with the value of the property and its preservation; except that, during the surviving spouse's lifetime, no person other than the surviving spouse may receive any distribution of the property or its income; and (c) Make the property productive or convert it into productive property within a reasonable time after the devise; except that, the exercise of such power shall be subject to the degree of judgment and care which a prudent person would use if he were the owner of the property. The proceeds of any such conversion shall be reinvested by the surviving spouse in a form subject to the life estate and remainder rights created by the decedent. (2) The provisions of this part 12 shall be interpreted consistently with the requirements of section 2056 (b)(7) of the federal "Internal Revenue Code of 1986", as amended, if the personal representative of the estate of the decedent spouse elects to treat such life estate as qualified terminable interest property under said Internal Revenue Code section. Source: L. 88: Entire part added, p. 647, § 1, effective May 17. L. 2000: (2) amended, p. 1846, § 28, effective August 2. 15-1-1202. Applicability of part. This part 12 shall apply to the estate of any person whose death occurred after December 31, 1981. Source: L. 88: Entire part added, p. 648, § 1, effective May 17. PART 13 UNIFORM STATUTORY FORM POWER OF ATTORNEY ACT 15-1-1301 to 15-1-1321. (Repealed) Editor's note: (1) This part 13 was added in 1992. For amendments to this part 13 prior to its repeal in 2010, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. (2) Section 15-1-1321 provided for the repeal of this part 13, effective January 1, 2010. (See L. 2009, p. 427.) PART 14 RESTRICTIONS ON EXERCISE OF CERTAIN FIDUCIARY POWERS Colorado Revised Statutes 2019 Page 66 of 600 Uncertified Printout 15-1-1401. Restrictions on exercise of certain fiduciary powers. (1) (a) Due to the inherent conflict of interest that exists between a trustee who is a beneficiary of a trust and other beneficiaries of the trust, any of the following powers conferred upon a trustee shall not be exercised by such trustee: (I) To make or cause to be made discretionary distributions of either principal or income to or for the direct or indirect benefit of such trustee; except that such a power may be exercised by such trustee to the extent that it may be exercised to provide for that trustee's health, education, maintenance, or support as described under sections 2041 and 2514 of the federal "Internal Revenue Code of 1986", as amended; (II) To make discretionary distributions of either principal or income to satisfy any legal obligations of such trustee; or (III) To make or cause to be made discretionary distributions of either principal or income to or for the direct or indirect benefit of any person who has the right to remove or replace such trustee; except that such a power may be exercised by such trustee to the extent that it may be exercised to provide for such person's health, education, maintenance, or support as described under sections 2041 and 2514 of the federal "Internal Revenue Code of 1986", as amended. (b) Any of the powers prescribed in paragraph (a) of this subsection (1) that are conferred upon two or more trustees may be exercised by the trustees who are not so disqualified. If there is no trustee qualified to exercise such powers, any party in interest, as described in subsection (3) of this section, may apply to a court of competent jurisdiction to appoint an independent trustee, and such powers may be exercised by the independent trustee appointed by the court. Subparagraph (I) of paragraph (a) of this subsection (1) shall not prohibit a trustee from making payments, including reimbursement of and compensation of such trustee, for the protection of the trust, or the assets thereof, and for all expenses, losses, and liabilities incurred in or by the collection, care, administration, or protection of the trust or the assets thereof. (2) This section applies to every trust unless the terms of the trust as it may be amended in accordance with its terms provide expressly to the contrary and either specifically refer to this section or otherwise clearly demonstrate the intent that this rule not apply or unless, if the trust is irrevocable, all parties in interest, as described in subsection (3) of this section, elect affirmatively, in the manner prescribed in subsection (4) of this section, not to be subject to the application of this section. Such election shall be made on or before July 1, 1999, or three years after the date on which the trust becomes irrevocable, whichever occurs later. (3) For the purpose of subsection (1) or subsection (2) of this section: (a) If the trust is revocable or amendable and the settlor is not incapacitated, the party in interest is the settlor. (b) If the trust is revocable or amendable and the settlor is incapacitated, the party in interest is the settlor's legal representative under applicable law or the settlor's agent under a durable power of attorney that is sufficient to grant such authority. (c) If the trust is not revocable or amendable, the parties in interest are: (I) Each trustee then serving; (II) Each income beneficiary then in existence or, if any such beneficiary has not attained majority or is otherwise incapacitated, the beneficiary's legal representative under Colorado Revised Statutes 2019 Page 67 of 600 Uncertified Printout applicable law or the beneficiary's agent under a durable power of attorney that is sufficient to grant such authority; and (III) Each remainder beneficiary then in existence or, if any such remainder beneficiary has not attained majority or is otherwise incapacitated, the beneficiary's legal representative under applicable law or the beneficiary's agent under a durable power of attorney that is sufficient to grant such authority. (4) The affirmative election required under subsection (2) of this section shall be made: (a) If the settlor is not incapacitated and the trust is revocable or amendable, through a revocation of or an amendment to the trust; (b) If the settlor is incapacitated and the trust is revocable or amendable, through a written declaration executed in the manner prescribed for the acknowledgment of deeds in this state and delivered to the trustee; or (c) If the trust is not revocable or amendable, through a written declaration executed in the manner prescribed for the acknowledgment of deeds in this state and delivered to the trustee. (5) A person who has the right to remove or to replace a trustee does not possess nor may that person be deemed to possess, by virtue of having that right, the powers proscribed in subparagraphs (I), (II), and (III) of paragraph (a) of subsection (1) of this section of the trustee that is subject to removal or to replacement. (6) (a) Subparagraphs (I) and (II) of paragraph (a) of subsection (1) of this section shall not apply to a trustee with respect to trust property and the income from such property where such property would, upon the death of such trustee, be included in the gross estate of such trustee for federal estate tax purposes for any reason other than the powers proscribed by subparagraphs (I) and (II) of paragraph (a) of subsection (1) of this section. (b) Subparagraph (I) of paragraph (a) of subsection (1) of this section shall not apply to a trustee that may be appointed or removed by a person for whose benefit the proscribed powers may be exercised to distribute trust property or the income from such property where such property would, upon the death of such person, be included in the gross estate of such person for federal estate tax purposes for any reason other than such powers to appoint or remove such trustee. (7) The provisions of this section neither create a new cause of action nor impair any existing cause of action that, in either case, relates to any power proscribed by subsection (1) of this section that was exercised before July 1, 1996. Source: L. 96: Entire part added, p. 654, § 4, effective July 1. PART 15 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 15-1-1501. Short title. This part 15 may be cited as the "Revised Uniform Fiduciary Access to Digital Assets Act". Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 179, § 1, effective August 10. Colorado Revised Statutes 2019 Page 68 of 600 Uncertified Printout 15-1-1502. Definitions. In this part 15: (1) "Account" means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user. (2) "Agent" means an attorney-in-fact granted authority under a durable or nondurable power of attorney. (3) "Carries" means engages in the transmission of an electronic communication. (4) "Catalog of electronic communications" means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person. (5) "Conservator" means a person appointed by a court to manage the estate of a living individual. The term includes a limited conservator. (6) "Content of an electronic communication" means information concerning the substance or meaning of a communication that: (a) Has been sent or received by a user; (b) Is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote-computing service to the public; and (c) Is not readily accessible to the public. (7) "Court" means the district court, except in the city and county of Denver where it is the probate court. (8) "Custodian" means a person that carries, maintains, processes, receives, or stores a digital asset of a user. (9) "Designated recipient" means a person chosen by a user using an on-line tool to administer digital assets of the user. (10) "Digital asset" means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record. (11) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. (12) "Electronic communication" has the meaning set forth in 18 U.S.C. sec. 2510(12), as amended. (13) "Electronic-communication service" means a custodian that provides to a user the ability to send or receive an electronic communication. (14) "Fiduciary" means an original, additional, or successor personal representative, conservator, agent, or trustee. (15) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like. (16) "On-line tool" means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person. (17) "Person" means an individual; estate; business or nonprofit entity; public corporation; government or governmental subdivision, agency, or instrumentality; or other legal entity. Colorado Revised Statutes 2019 Page 69 of 600 Uncertified Printout (18) "Personal representative" means an executor, administrator, special administrator, or person that performs substantially the same function under law of this state other than this part 15. (19) "Power of attorney" means a record that grants an agent authority to act in the place of a principal. (20) "Principal" means an individual who grants authority to an agent in a power of attorney. (21) "Protected person" means an individual for whom a conservator has been appointed. The term includes an individual for whom an application for the appointment of a conservator is pending. (22) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (23) "Remote-computing service" means a custodian that provides to a user computerprocessing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. sec. 2510(14), as amended. (24) "Terms-of-service agreement" means an agreement that controls the relationship between a user and a custodian. (25) "Trustee" means a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another. The term includes a successor trustee. (26) "User" means a person that has an account with a custodian. (27) "Will" includes a codicil, testamentary instrument that only appoints an executor, and instrument that revokes or revises a testamentary instrument. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 179, § 1, effective August 10. 15-1-1503. Applicability. (1) This part 15 applies to: (a) A fiduciary acting under a will or power of attorney executed before, on, or after August 10, 2016; (b) A personal representative acting for a decedent who died before, on, or after August 10, 2016; (c) A conservatorship proceeding commenced before, on, or after August 10, 2016; and (d) A trustee acting under a trust created before, on, or after August 10, 2016. (2) This part 15 applies to a custodian if the user resides in this state or resided in this state at the time of the user's death. (3) (a) This part 15 does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business. (b) This part 15 does not apply to a digital asset of an entity used by a manager, owner, or other person in the course of the conduct of the internal affairs of the entity. The terms "entity", "manager", and "owner" in this paragraph (b) have the same meaning as defined in section 7-90-102, C.R.S. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 181, § 1, effective August 10. 15-1-1504. User direction for disclosure of digital assets. (1) A user may use an online tool to direct the custodian to disclose to a designated recipient or to not disclose some or all Colorado Revised Statutes 2019 Page 70 of 600 Uncertified Printout of the user's digital assets, including the content of electronic communications. If the on-line tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an on-line tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record. (2) If a user has not used an on-line tool to give direction under subsection (1) of this section or if the custodian has not provided an on-line tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user. (3) A user's direction under subsection (1) or (2) of this section overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 182, § 1, effective August 10. 15-1-1505. Terms-of-service agreement. (1) This part 15 does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user. (2) This part 15 does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents. (3) A fiduciary's or designated recipient's access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under section 15-1-1504. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 182, § 1, effective August 10. 15-1-1506. Procedure for disclosing digital assets. (1) When disclosing digital assets of a user under this part 15, the custodian may at its sole discretion: (a) Grant a fiduciary or designated recipient full access to the user's account; (b) Grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or (c) Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account. (2) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this part 15. (3) A custodian need not disclose under this part 15 a digital asset deleted by a user. (4) If a user directs or a fiduciary requests a custodian to disclose under this part 15 some, but not all, of the user's digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose: (a) A subset limited by date of the user's digital assets; (b) All of the user's digital assets to the fiduciary or designated recipient; (c) None of the user's digital assets; or Colorado Revised Statutes 2019 Page 71 of 600 Uncertified Printout (d) All of the user's digital assets to the court for review in camera. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 183, § 1, effective August 10. 15-1-1507. Disclosure of content of electronic communications of deceased user. (1) If a deceased user consented or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the representative gives the custodian: (a) A written request for disclosure in physical or electronic form; (b) A certified copy of the death certificate of the user; (c) A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order; (d) Unless the user provided direction using an on-line tool, a copy of the user's will, trust, power of attorney, or other record evidencing the user's consent to disclosure of the content of electronic communications; and (e) If requested by the custodian: (I) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account; (II) Evidence linking the account to the user; or (III) A finding by the court that: (A) The user had a specific account with the custodian, identifiable by the information specified in subparagraph (I) of this paragraph (e); (B) Disclosure of the content of electronic communications of the user would not violate 18 U.S.C. sec. 2701, et seq., as amended; 47 U.S.C. sec. 222, as amended; or other applicable law; (C) Unless the user provided direction using an on-line tool, the user consented to disclosure of the content of electronic communications; or (D) Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 183, § 1, effective August 10. 15-1-1508. Disclosure of other digital assets of deceased user. (1) Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalog of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian: (a) A written request for disclosure in physical or electronic form; (b) A certified copy of the death certificate of the user; (c) A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order; and (d) If requested by the custodian: (I) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account; Colorado Revised Statutes 2019 Page 72 of 600 Uncertified Printout (II) Evidence linking the account to the user; (III) An affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate; or (IV) A finding by the court that: (A) The user had a specific account with the custodian, identifiable by the information specified in subparagraph (I) of this paragraph (d); or (B) Disclosure of the user's digital assets is reasonably necessary for administration of the estate. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 184, § 1, effective August 10. 15-1-1509. Disclosure of content of electronic communications of principal. (1) To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian: (a) A written request for disclosure in physical or electronic form; (b) An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal; (c) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and (d) If requested by the custodian: (I) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or (II) Evidence linking the account to the principal. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 185, § 1, effective August 10. 15-1-1510. Disclosure of other digital assets of principal. (1) Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalog of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian: (a) A written request for disclosure in physical or electronic form; (b) An original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal; (c) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and (d) If requested by the custodian: (I) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or (II) Evidence linking the account to the principal. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 185, § 1, effective August 10. Colorado Revised Statutes 2019 Page 73 of 600 Uncertified Printout 15-1-1511. Disclosure of digital assets held in trust when trustee is original user. Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalog of electronic communications of the trustee and the content of electronic communications. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 186, § 1, effective August 10. 15-1-1512. Disclosure of contents of electronic communications held in trust when trustee not original user. (1) Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian: (a) A written request for disclosure in physical or electronic form; (b) A certified copy of the trust instrument or a registration of the trust under part 2 of article 5 of this title 15 that includes consent to disclosure of the content of electronic communications to the trustee; (c) A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and (d) If requested by the custodian: (I) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or (II) Evidence linking the account to the trust. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 186, § 1, effective August 10. L. 2018: (1)(b) amended, (SB 18-180), ch. 169, p. 1192, § 6, effective January 1, 2019. 15-1-1513. Disclosure of other digital assets held in trust when trustee not original user. (1) Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalog of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian: (a) A written request for disclosure in physical or electronic form; (b) A certified copy of the trust instrument or a registration of the trust under part 2 of article 5 of this title 15; (c) A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and (d) If requested by the custodian: (I) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or (II) Evidence linking the account to the trust. Colorado Revised Statutes 2019 Page 74 of 600 Uncertified Printout Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 186, § 1, effective August 10. L. 2018: (1)(b) amended, (SB 18-180), ch. 169, p. 1192, § 7, effective January 1, 2019. 15-1-1514. Disclosure of digital assets to conservator of protected person. (1) After an opportunity for a hearing under article 14 of this title, the court may grant a conservator access to the digital assets of a protected person. (2) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator the catalog of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator gives the custodian: (a) A written request for disclosure in physical or electronic form; (b) A certified copy of the court order that gives the conservator authority over the digital assets of the protected person; and (c) If requested by the custodian: (I) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or (II) Evidence linking the account to the protected person. (3) A conservator with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section must be accompanied by a certified copy of the court order giving the conservator authority over the protected person's property. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 187, § 1, effective August 10. 15-1-1515. Fiduciary duty and authority. (1) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including: (a) The duty of care; (b) The duty of loyalty; and (c) The duty of confidentiality. (2) A fiduciary's or designated recipient's authority with respect to a digital asset of a user: (a) Except as otherwise provided in section 15-1-1504, is subject to the applicable terms of service; (b) Is subject to other applicable law, including copyright law; (c) In the case of a fiduciary, is limited by the scope of the fiduciary's duties; and (d) May not be used to impersonate the user. (3) A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement. (4) A fiduciary acting within the scope of the fiduciary's duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer-fraud and unauthorized-computer-access laws, including article 5.5 of title 18, C.R.S. Colorado Revised Statutes 2019 Page 75 of 600 Uncertified Printout (5) A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal, or settlor: (a) Has the right to access the property and any digital asset stored in it; and (b) Is an authorized user for the purpose of computer-fraud and unauthorized-computeraccess laws, including article 5.5 of title 18, C.R.S. (6) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user. (7) A fiduciary of a user may request a custodian to terminate the user's account. A request for termination must be in writing, in either physical or electronic form, and accompanied by: (a) If the user is deceased, a certified copy of the death certificate of the user; (b) A certified copy of the letter of appointment of the representative or a small-estate affidavit or court order, court order, power of attorney, or trust giving the fiduciary authority over the account; and (c) If requested by the custodian: (I) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account; (II) Evidence linking the account to the user; or (III) A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subparagraph (I) of this paragraph (c). (8) A domiciliary foreign personal representative is not required to comply with the provisions of section 15-13-204, or with any other provision of article 13 of this title, as a condition to obtaining disclosure of a digital asset pursuant to this part 15. (9) A foreign conservator is not required to comply with the provisions of section 15-14433 as a condition to obtaining disclosure of a digital asset pursuant to this part 15. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 187, § 1, effective August 10. 15-1-1516. Custodian compliance and immunity. (1) Not later than sixty days after receipt of the information required under sections 15-1-1507 to 15-1-1515, a custodian shall comply with a request under this part 15 from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance. (2) An order under subsection (1) of this section directing compliance must contain a finding that compliance is not in violation of 18 U.S.C. sec. 2702, as amended. (3) A custodian may notify the user that a request for disclosure or to terminate an account was made under this part 15. (4) A custodian may deny a request under this part 15 from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request. (5) This part 15 does not limit a custodian's ability to obtain, or to require a fiduciary or designated recipient requesting disclosure or termination under this part 15 to obtain, a court order that: (a) Specifies that an account belongs to the protected person or principal; Colorado Revised Statutes 2019 Page 76 of 600 Uncertified Printout (b) Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and (c) Contains a finding required by law other than this part 15. (6) A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this part 15. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 189, § 1, effective August 10. 15-1-1517. Uniformity of application and construction. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 190, § 1, effective August 10. 15-1-1518. Relation to electronic signatures in global and national commerce act. This part 15 modifies, limits, or supersedes the federal "Electronic Signatures in Global and National Commerce Act", 15 U.S.C. sec. 7001, et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. sec. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. sec. 7003(b). Source: L. 2016: Entire part added, (SB 16-088), ch. 71, p. 190, § 1, effective August 10. ARTICLE 1.1 Uniform Prudent Investor Act Editor's note: This article is a uniform act, and the numbering of subsections and paragraphs varies from the numbering system generally used in Colorado Revised Statutes. Law reviews: For article, "Diversification Under the Uniform Prudent Investor Act", see 32 Colo. Law. 87 (Nov. 2003); for article, "What Every Trustee Should Know About Investing", see 35 Colo. Law. 51 (Feb. 2006); for article, "The Dangers of Relying on Trust Language", see 45 Colo. Law. 55 (March 2016). 15-1.1-101. Prudent investor rule. (a) Except as otherwise provided in subsection (b) of this section, a trustee who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule set forth in this article. (b) The prudent investor rule, a default rule, may be expanded, restricted, eliminated, or otherwise altered by the provisions of a trust. A trustee is not liable to a beneficiary to the extent that the trustee acted in reasonable reliance on the provisions of the trust. Source: L. 95: Entire article added, p. 309, § 1, effective July 1. 15-1.1-102. Standard of care - portfolio strategy - risk and return objectives. (a) A trustee shall invest and manage trust assets as a prudent investor would, by considering the Colorado Revised Statutes 2019 Page 77 of 600 Uncertified Printout purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution. (b) A trustee's investment and management decisions respecting individual assets must be evaluated not in isolation but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust. (c) Among circumstances that a trustee shall consider in investing and managing trust assets are such of the following as are relevant to the trust or its beneficiaries: (1) General economic conditions; (2) The possible effect of inflation or deflation; (3) The expected tax consequences of investment decisions or strategies; (4) The role that each investment or course of action plays within the overall trust portfolio, which may include financial assets, interests in closely held enterprises, tangible and intangible personal property, and real property; (5) The expected total return from income and the appreciation of capital; (6) Other resources of the beneficiaries; (7) Needs for liquidity, regularity of income, and preservation or appreciation of capital; and (8) An asset's special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries. (d) A trustee shall make a reasonable effort to verify facts relevant to the investment and management of trust assets. (e) A trustee may invest in any kind of property or type of investment consistent with the standards of this article. (f) A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's representation that the trustee has special skills or expertise, has a duty to use those special skills or expertise. Source: L. 95: Entire article added, p. 309, § 1, effective July 1. 15-1.1-103. Diversification. A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying. Source: L. 95: Entire article added, p. 310, § 1, effective July 1. 15-1.1-104. Duties at inception of trusteeship. Within a reasonable time after accepting a trusteeship or receiving trust assets, a trustee shall review the trust assets and make and implement decisions concerning the retention and disposition of assets, in order to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, and other circumstances of the trust, and with the requirements of this article. Source: L. 95: Entire article added, p. 310, § 1, effective July 1. 15-1.1-105. Loyalty. A trustee shall invest and manage the trust assets solely in the interest of the beneficiaries. Colorado Revised Statutes 2019 Page 78 of 600 Uncertified Printout Source: L. 95: Entire article added, p. 311, § 1, effective July 1. 15-1.1-106. Impartiality. If a trust has two or more beneficiaries, the trustee shall act impartially in investing and managing the trust assets, taking into account any differing interests of the beneficiaries. Source: L. 95: Entire article added, p. 311, § 1, effective July 1. 15-1.1-107. Investment costs. In investing and managing trust assets, a trustee may only incur costs that are appropriate and reasonable in relation to the assets, the purposes of the trust, and the skills of the trustee. Source: L. 95: Entire article added, p. 311, § 1, effective July 1. 15-1.1-108. Reviewing compliance. Compliance with the prudent investor rule is determined in light of the facts and circumstances existing at the time of a trustee's decision or action and not by hindsight. Source: L. 95: Entire article added, p. 311, § 1, effective July 1. 15-1.1-109. Delegation of investment and management functions. (a) A trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in: (1) Selecting an agent; (2) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and (3) Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation. (b) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation. (c) A trustee who complies with the requirements of subsection (a) of this section is not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated. (d) By accepting the delegation of a trust function from the trustee of a trust that is subject to the law of this State, an agent submits to the jurisdiction of the courts of this State. Source: L. 95: Entire article added, p. 311, § 1, effective July 1. 15-1.1-110. Language invoking standard of article. The following terms or comparable language in the provisions of a trust, unless otherwise limited or modified, authorizes any investment or strategy permitted under this article: "investments permissible by law for investment of trust funds," "legal investments," "authorized investments," "using the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but Colorado Revised Statutes 2019 Page 79 of 600 Uncertified Printout in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital," "prudent man rule," "prudent trustee rule," "prudent person rule," and "prudent investor rule." Source: L. 95: Entire article added, p. 311, § 1, effective July 1. 15-1.1-111. Application to existing trusts. This article applies to trusts existing on and created after July 1, 1995; except that, as applied to trusts existing on July 1, 1995, this article governs only decisions or actions occurring after said date. Source: L. 95: Entire article added, p. 312, § 1, effective July 1. 15-1.1-112. Uniformity of application and construction. This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among the states enacting it. Source: L. 95: Entire article added, p. 312, § 1, effective July 1. 15-1.1-113. Short title. This article shall be known and may be cited as the "Colorado Uniform Prudent Investor Act". Source: L. 95: Entire article added, p. 312, § 1, effective July 1. 15-1.1-114. Severability. If any provision of this article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable. Source: L. 95: Entire article added, p. 312, § 1, effective July 1. 15-1.1-115. Colorado changes to uniform act - specific statutes control - use of term "trustee". (1) (a) The general assembly recognizes that persons, corporations, entities, or state agencies who have responsibility for investing funds may be subject to a standard that is specifically set forth in other statutes. Under such circumstances, such persons, corporations, entities, or state agencies shall comply with the standard of investment set forth in the other statute, and this article shall not modify or repeal that standard. (b) In addition, as provided for in section 15-1-304.1, this article shall not apply to those persons, corporations, entities, or state agencies which were made subject to the provisions of section 15-1-304 by specific reference in another statute in existence prior to July 1, 1995. (2) As used in this article, "trustee" includes original or successor administrators, special administrators, administrators cum testamento annexo, executors, guardians, conservators, and trustees, whether of express or implied trusts. Source: L. 95: Entire article added, p. 312, § 1, effective July 1. Colorado Revised Statutes 2019 Page 80 of 600 Uncertified Printout ARTICLE 1.5 Colorado Uniform Custodial Trust Act 15-1.5-101. Definitions. As used in this article 1.5: (1) "Adult" means an individual who is at least eighteen years of age. (2) "Beneficiary" means an individual for whom property has been transferred to or held under a declaration of trust by a custodial trustee for the individual's use and benefit under this article. (3) "Conservator" means a person appointed or qualified by a court to manage the estate of an individual or a person legally authorized to perform substantially the same functions. (4) "Court" means the district courts of this state, except in the city and county of Denver, where it means the probate court. (5) "Custodial trust property" means an interest in property transferred to or held under a declaration of trust by a custodial trustee under this article and the income from and proceeds of that interest. (6) "Custodial trustee" means a person designated as trustee of a custodial trust under this article or a substitute or successor to the person designated. (7) "Guardian" means a person appointed or qualified by a court as a guardian of an individual, including a limited guardian, but not a person who is only a guardian ad litem. (8) "Incapacitated" means lacking the ability to manage property and business affairs effectively by reason of a behavioral or mental health disorder, an intellectual and developmental disability, a physical illness or disability, a substance use disorder, confinement, detention by a foreign power, disappearance, minority, or other disabling cause. (9) "Legal representative" means a personal representative or conservator. (10) "Member of the beneficiary's family" means a beneficiary's spouse, descendant, stepchild, parent, stepparent, grandparent, brother, sister, uncle, or aunt, whether related by whole or half blood or by adoption. (11) "Person" means an individual, corporation, business trust, estate, trust, partnership, joint venture, association, or any other legal or commercial entity. (12) "Personal representative" means an executor, administrator, or special administrator of a decedent's estate, a person legally authorized to perform substantially the same functions, or a successor to any of them. (13) "State" means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico. (14) "Transferor" means a person who creates a custodial trust by transfer or declaration. (15) "Trust company" means a financial institution, corporation, or other legal entity authorized to exercise general trust powers. Source: L. 99: Entire article added, p. 1211, § 1, effective August 4. L. 2017: IP and (8) amended, (HB 17-1046), ch. 50, p. 157, § 7, effective March 16; (8) amended, (SB 17-242), ch. 263, p. 1295, § 115, effective May 25. Cross references: For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017. Colorado Revised Statutes 2019 Page 81 of 600 Uncertified Printout 15-1.5-102. Custodial trust - general. (1) A person may create a custodial trust of property by a written transfer of the property to another person, evidenced by registration or by other instrument of transfer, executed in any lawful manner, naming as beneficiary an individual who may be the transferor, in which the transferee is designated, in substance, as custodial trustee under the "Colorado Uniform Custodial Trust Act". (2) A person may create a custodial trust of property by a written declaration, evidenced by registration of the property or by other instrument of declaration executed in any lawful manner, describing the property and naming as beneficiary an individual other than the declarant, in which the declarant as titleholder is designated, in substance, as custodial trustee under the "Colorado Uniform Custodial Trust Act". A registration or other declaration of trust for the sole benefit of the declarant is not a custodial trust under the "Colorado Uniform Custodial Trust Act". (3) Title to custodial trust property is in the custodial trustee and the beneficial interest is in the beneficiary. (4) Except as provided in subsection (5) of this section, a transferor may not terminate a custodial trust. (5) The beneficiary, if not incapacitated, or the conservator of an incapacitated beneficiary, may terminate a custodial trust by delivering to the custodial trustee a writing signed by the beneficiary or conservator declaring the termination. If not previously terminated, the custodial trust terminates on the death of the beneficiary. (6) Any person may augment existing custodial trust property by the addition of other property pursuant to this article. (7) The transferor may designate, or authorize the designation of, a successor custodial trustee in the trust instrument. (8) This article does not displace or restrict other means of creating trusts. A trust whose terms do not conform to this article may be enforceable according to its terms under other law. Source: L. 99: Entire article added, p. 1212, § 1, effective August 4. 15-1.5-103. Custodial trustee for future payment or transfer. (1) A person having the right to designate the recipient of property payable or transferable upon a future event may create a custodial trust upon the occurrence of the future event by designating in writing the recipient, followed in substance by "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act"". (2) Persons may be designated as substitute or successor custodial trustees to whom the property must be paid or transferred in the order named if the first designated custodial trustee is unable or unwilling to serve. (3) A designation under this section may be made in a will, a trust, a deed, a multipleparty account, an insurance policy, an instrument exercising a power of appointment, or a writing designating a beneficiary of contractual rights. Otherwise, to be effective, the designation must be registered with or delivered to the fiduciary, payor, issuer, or obligor of the future right. Source: L. 99: Entire article added, p. 1213, § 1, effective August 4. Colorado Revised Statutes 2019 Page 82 of 600 Uncertified Printout 15-1.5-104. Form and effect of receipt and acceptance by custodial trustee jurisdiction. (1) Obligations of a custodial trustee, including the obligation to follow upon directions of the beneficiary, arise under this article upon the custodial trustee's acceptance, express or implied, of the custodial trust property. (2) The custodial trustee's acceptance may be evidenced by a writing stating in substance: CUSTODIAL TRUSTEE'S RECEIPT AND ACCEPTANCE I, ____________ (name of custodial trustee) acknowledge receipt of the custodial trust property described below or in the attached instrument and accept the custodial trust as custodial trustee for ____________ (name of beneficiary) under the "Colorado Uniform Custodial Trust Act". I undertake to administer and distribute the custodial trust property pursuant to the "Colorado Uniform Custodial Trust Act". My obligations as custodial trustee are subject to the directions of the beneficiary unless the beneficiary is designated as, is, or becomes incapacitated. The custodial trust property consists of ____________. Dated: _______________ _____________________ (Signature of Custodial Trustee) (3) Upon accepting custodial trust property, a person designated as custodial trustee under this article is subject to personal jurisdiction of the court with respect to any matter relating to the custodial trust. Source: L. 99: Entire article added, p. 1214, § 1, effective August 4. 15-1.5-105. Transfer to custodial trustee by fiduciary or obligor - facility of payment. (1) Unless otherwise directed by an instrument designating a custodial trustee pursuant to section 15-1.5-103, a person, including a fiduciary other than a custodial trustee, who holds property of or owes a debt to an incapacitated individual not having a conservator may make a transfer to an adult member of the beneficiary's family or to a trust company as custodial trustee for the use and benefit of the incapacitated individual. If the value of the property or the debt exceeds thirty thousand dollars, the transfer is not effective unless authorized by the court. (2) A written acknowledgment of delivery, signed by a custodial trustee, is a sufficient receipt and discharge for property transferred to the custodial trustee pursuant to this section. Source: L. 99: Entire article added, p. 1214, § 1, effective August 4. 15-1.5-106. Multiple beneficiaries - separate custodial trusts - survivorship. (1) Beneficial interests in a custodial trust created for multiple beneficiaries are deemed to be separate custodial trusts of equal undivided interests for each beneficiary. Except in a transfer or declaration for use and benefit of husband and wife, for whom survivorship is presumed, a right of survivorship does not exist unless the instrument creating the custodial trust specifically provides for survivorship. (2) Custodial trust property held under this article by the same custodial trustee for the use and benefit of the same beneficiary may be administered as a single custodial trust. Colorado Revised Statutes 2019 Page 83 of 600 Uncertified Printout (3) A custodial trustee of custodial trust property held for more than one beneficiary shall separately account to each beneficiary pursuant to sections 15-1.5-107 and 15-1.5-115 for the administration of the custodial trust. Source: L. 99: Entire article added, p. 1214, § 1, effective August 4. 15-1.5-107. General duties of custodial trustee. (1) If appropriate, a custodial trustee shall register or record the instrument vesting title to custodial trust property. (2) If the beneficiary is not incapacitated, a custodial trustee shall follow the directions of the beneficiary in the management, control, investment, or retention of the custodial trust property. In the absence of effective contrary direction by the beneficiary while not incapacitated, or if the beneficiary is incapacitated, the custodial trustee shall observe the standard of care that would be observed by a prudent person dealing with property of another and shall comply with the provisions of the "Colorado Uniform Prudent Investor Act". However, a custodial trustee, in the custodial trustee's discretion, may retain any custodial trust property received from the transferor. (3) Subject to subsection (2) of this section, a custodial trustee shall take control of and collect, hold, manage, invest, and reinvest custodial trust property. (4) A custodial trustee at all times shall keep custodial trust property of which the custodial trustee has control, separate from all other property in a manner sufficient to identify it clearly as custodial trust property of the beneficiary. Custodial trust property, the title to which is subject to recordation, is so identified if an appropriate instrument so identifying the property is recorded, and custodial trust property subject to registration is so identified if it is registered, or held in an account in the name of the custodial trustee, designated in substance: "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act"". (5) A custodial trustee shall keep records of all transactions with respect to custodial trust property, including information necessary for the preparation of tax returns, and shall make the records and information available at reasonable times to the beneficiary or legal representative of the beneficiary. (6) The exercise of a durable power of attorney for an incapacitated beneficiary is not effective to terminate or direct the administration or distribution of a custodial trust. Source: L. 99: Entire article added, p. 1215, § 1, effective August 4. Editor's note: Colorado modified the model act by directing that the custodial trustee shall also comply with the provisions of the "Colorado Uniform Prudent Investor Act". 15-1.5-108. General powers of custodial trustee. (1) A custodial trustee, acting in a fiduciary capacity, has all the rights and powers over custodial trust property which an unmarried adult owner has over individually owned property, but a custodial trustee may exercise those rights and powers in a fiduciary capacity only. (2) This section does not relieve a custodial trustee from liability for a violation of section 15-1.5-107. Source: L. 99: Entire article added, p. 1216, § 1, effective August 4. Colorado Revised Statutes 2019 Page 84 of 600 Uncertified Printout 15-1.5-109. Use of custodial trust property. (1) A custodial trustee shall pay to the beneficiary or expend for the beneficiary's use and benefit so much or all of the custodial trust property as the beneficiary while not incapacitated may direct from time to time. (2) If the beneficiary is incapacitated, the custodial trustee shall expend so much or all of the custodial trust property as the custodial trustee considers advisable for the use and benefit of the beneficiary and individuals who were supported by the beneficiary when the beneficiary became incapacitated or who are legally entitled to support by the beneficiary. Expenditures may be made in the manner, when, and to the extent that the custodial trustee determines suitable and proper, without court order and without regard to other support, income, or property of the beneficiary. (3) A custodial trustee may establish checking, savings, or other similar accounts of reasonable amounts under which either the custodial trustee or the beneficiary may withdraw funds from, or draw checks against, the accounts. Funds withdrawn from, or checks written against, the account by the beneficiary are distributions of custodial trust property by the custodial trustee to the beneficiary. Source: L. 99: Entire article added, p. 1216, § 1, effective August 4. 15-1.5-110. Determination of incapacity - effect. (1) The custodial trustee shall administer the custodial trust as for an incapacitated beneficiary if: (a) The custodial trust was created under section 15-1.5-105; (b) The transferor has so directed in the instrument creating the custodial trust; or (c) The custodial trustee has determined that the beneficiary is incapacitated. (2) A custodial trustee may determine that the beneficiary is incapacitated in reliance upon: (a) Previous direction or authority given by the beneficiary while not incapacitated, including direction or authority pursuant to a durable power of attorney; (b) The certificate of the beneficiary's physician; or (c) Other persuasive evidence. (3) If a custodial trustee for an incapacitated beneficiary reasonably concludes that the beneficiary's incapacity has ceased, or that circumstances concerning the beneficiary's ability to manage property and business affairs have changed since the creation of a custodial trust directing administration as for an incapacitated beneficiary, the custodial trustee may administer the trust as for a beneficiary who is not incapacitated. (4) On petition of the beneficiary, the custodial trustee, or other person interested in the custodial trust property or the welfare of the beneficiary, the court shall determine whether the beneficiary is incapacitated. (5) Absent determination of incapacity of the beneficiary under subsection (2) or (4) of this section, a custodial trustee who has reason to believe that the beneficiary is incapacitated shall administer the custodial trust in accordance with the provisions of this article applicable to an incapacitated beneficiary. (6) Incapacity of a beneficiary does not terminate: (a) The custodial trust; (b) Any designation of a successor custodial trustee; (c) Rights or powers of the custodial trustee; or Colorado Revised Statutes 2019 Page 85 of 600 Uncertified Printout (d) Any immunities of third persons acting on instructions of the custodial trustee. Source: L. 99: Entire article added, p. 1216, § 1, effective August 4. 15-1.5-111. Exemption of third persons from liability. (1) A third person in good faith and without a court order may act on instructions of, or otherwise deal with, a person purporting to make a transfer as, or purporting to act in the capacity of, a custodial trustee. In the absence of knowledge to the contrary, the third person is not responsible for determining: (a) The validity of the purported custodial trustee's designation; (b) The propriety of, or the authority under this article for, any action of the purported custodial trustee; (c) The validity or propriety of an instrument executed or instruction given pursuant to this article either by the person purporting to make a transfer or declaration or by the purported custodial trustee; or (d) The propriety of the application of property vested in the purported custodial trustee. Source: L. 99: Entire article added, p. 1217, § 1, effective August 4. 15-1.5-112. Liability to third persons. (1) A claim based on a contract entered into by a custodial trustee acting in a fiduciary capacity, an obligation arising from the ownership or control of custodial trust property, or a tort committed in the course of administering the custodial trust may be asserted by a third person against the custodial trust property by proceeding against the custodial trustee in a fiduciary capacity, whether or not the custodial trustee or the beneficiary is personally liable. (2) A custodial trustee is not personally liable to a third person: (a) On a contract properly entered into in a fiduciary capacity unless the custodial trustee fails to reveal that capacity or to identify the custodial trust in the contract; or (b) For an obligation arising from control of custodial trust property or for a tort committed in the course of the administration of the custodial trust unless the custodial trustee is personally at fault. (3) A beneficiary is not personally liable to a third person for an obligation arising from beneficial ownership of custodial trust property or for a tort committed in the course of administration of the custodial trust unless the beneficiary is personally in possession of the custodial trust property giving rise to the liability or is personally at fault. (4) Subsections (2) and (3) of this section do not preclude actions or proceedings to establish liability of the custodial trustee or beneficiary to the extent the person sued is protected as the insured by liability insurance. Source: L. 99: Entire article added, p. 1218, § 1 effective August 4. 15-1.5-113. Declination, resignation, incapacity, death, or removal of custodial trustee - designation of successor custodial trustee. (1) Before accepting the custodial trust property, a person designated as custodial trustee may decline to serve by notifying the person who made the designation, the transferor, or the transferor's legal representative. If an event giving rise to a transfer has not occurred, the substitute custodial trustee designated under section Colorado Revised Statutes 2019 Page 86 of 600 Uncertified Printout 15-1.5-103 becomes the custodial trustee, or, if a substitute custodial trustee has not been designated, the person who made the designation may designate a substitute custodial trustee pursuant to section 15-1.5-103. In other cases, the transferor or the transferor's legal representative may designate a substitute custodial trustee. (2) A custodial trustee who has accepted the custodial trust property may resign by: (a) Delivering written notice to a successor custodial trustee, if any, the beneficiary, and, if the beneficiary is incapacitated, to the beneficiary's conservator, if any; and (b) Transferring or registering, or recording an appropriate instrument relating to, the custodial trust property, in the name of, and delivering the records to, the successor custodial trustee identified under subsection (3) of this section. (3) If a custodial trustee or successor custodial trustee is ineligible, resigns, dies, or becomes incapacitated, the successor designated under section 15-1.5-102 (7) or section 15-1.5103 becomes custodial trustee. If there is no effective provision for a successor, the beneficiary, if not incapacitated, may designate a successor custodial trustee. If the beneficiary is incapacitated, or fails to act within ninety days after the ineligibility, resignation, death, or incapacity of the custodial trustee, the beneficiary's conservator becomes successor custodial trustee. If the beneficiary does not have a conservator or the conservator fails to act, the resigning custodial trustee may designate a successor custodial trustee. (4) If a successor custodial trustee is not designated pursuant to subsection (3) of this section, the transferor, the legal representative of the transferor or of the custodial trustee, an adult member of the beneficiary's family, the guardian of the beneficiary, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court to designate a successor custodial trustee. (5) A custodial trustee who declines to serve or resigns, or the legal representative of a deceased or incapacitated custodial trustee, as soon as practicable, shall put the custodial trust property and records in the possession and control of the successor custodial trustee. The successor custodial trustee may enforce the obligation to deliver custodial trust property and records and becomes responsible for each item as received. (6) A beneficiary, the beneficiary's conservator, an adult member of the beneficiary's family, a guardian of the beneficiary, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court to remove the custodial trustee for cause and designate a successor custodial trustee, to require the custodial trustee to furnish a bond or other security for the faithful performance of fiduciary duties, or for other appropriate relief. Source: L. 99: Entire article added, p. 1218, § 1, effective August 4. 15-1.5-114. Expenses, compensation, and bond of custodial trustee. (1) Except as otherwise provided in the instrument creating the custodial trust, in an agreement with the beneficiary, or by court order, a custodial trustee: (a) Is entitled to reimbursement from custodial trust property for reasonable expenses incurred in the performance of fiduciary services; (b) Has a noncumulative election, to be made no later than six months after the end of each calendar year, to charge a reasonable compensation for fiduciary services performed during that year; and Colorado Revised Statutes 2019 Page 87 of 600 Uncertified Printout (c) Need not furnish a bond or other security for the faithful performance of fiduciary duties. Source: L. 99: Entire article added, p. 1219, § 1, effective August 4. 15-1.5-115. Reporting and accounting by custodial trustee - determination of liability of custodial trustee. (1) (a) Upon the acceptance of custodial trust property, the custodial trustee shall provide a written statement describing the custodial trust property and shall thereafter provide a written statement of the administration of the custodial trust property: (I) Once each year; (II) Upon request at reasonable times by the beneficiary or the beneficiary's legal representative; (III) Upon resignation or removal of the custodial trustee; and (IV) Upon termination of the custodial trust. (b) The statements must be provided to the beneficiary or to the beneficiary's legal representative, if any. Upon termination of the beneficiary's interest, the custodial trustee shall furnish a current statement to the person to whom the custodial trust property is to be delivered. (2) A beneficiary, the beneficiary's legal representative, an adult member of the beneficiary's family, a person interested in the custodial trust property, or a person interested in the welfare of the beneficiary may petition the court for an accounting by the custodial trustee or the custodial trustee's legal representative. (3) A successor custodial trustee may petition the court for an accounting by a predecessor custodial trustee. (4) In an action or proceeding under this article or in any other proceeding, the court may require or permit the custodial trustee or the custodial trustee's legal representative to account. The custodial trustee or the custodial trustee's legal representative may petition the court for approval of final accounts. (5) If a custodial trustee is removed, the court shall require an accounting and order delivery of the custodial trust property and records to the successor custodial trustee and the execution of all instruments required for transfer of the custodial trust property. (6) On petition of the custodial trustee or any person who could petition for an accounting, the court, after notice to interested persons, may issue instructions to the custodial trustee or review the propriety of the acts of a custodial trustee or the reasonableness of compensation determined by the custodial trustee for the services of the custodial trustee or others. Source: L. 99: Entire article added, p. 1220, § 1, effective August 4. 15-1.5-116. Limitations of action against custodial trustee. (1) Except as provided in subsection (3) of this section, unless previously barred by adjudication, consent, or limitation, a claim for relief against a custodial trustee for accounting or breach of duty is barred as to a beneficiary, a person to whom custodial trust property is to be paid or delivered, or the legal representative of an incapacitated or deceased beneficiary or payee: Colorado Revised Statutes 2019 Page 88 of 600 Uncertified Printout (a) Who has received a final account or statement fully disclosing the matter unless an action or proceeding to assert the claim is commenced within two years after receipt of the final account or statement; or (b) Who has not received a final account or statement fully disclosing the matter unless an action or proceeding to assert the claim is commenced within three years after the termination of the custodial trust. (2) Except as provided in subsection (3) of this section, a claim for relief to recover from a custodial trustee for fraud, misrepresentation, or concealment related to the final settlement of the custodial trust or concealment of the existence of the custodial trust is barred unless an action or proceeding to assert the claim is commenced within five years after the termination of the custodial trust. (3) A claim for relief is not barred by this section if the claimant: (a) Is a minor, until the earlier of two years after the claimant becomes an adult or dies; (b) Is an incapacitated adult, until the earliest of two years after the appointment of a conservator, the removal of the incapacity, or the death of the claimant; or (c) Was an adult, now deceased, who was not incapacitated, until two years after the claimant's death. Source: L. 99: Entire article added, p. 1221, § 1, effective August 4. 15-1.5-117. Distribution on termination. (1) Upon termination of a custodial trust, the custodial trustee shall transfer the unexpended custodial trust property: (a) To the beneficiary, if not incapacitated or deceased; (b) To the conservator or other recipient designated by the court for an incapacitated beneficiary; or (c) Upon the beneficiary's death, in the following order: (I) As last directed in a writing signed by the deceased beneficiary while not incapacitated and received by the custodial trustee during the life of the deceased beneficiary; (II) To the survivor of multiple beneficiaries if survivorship is provided for pursuant to section 15-1.5-106; (III) As designated in the instrument creating the custodial trust; or (IV) To the estate of the deceased beneficiary. (2) If, when the custodial trust would otherwise terminate, the distributee is incapacitated, the custodial trust continues for the use and benefit of the distributee as beneficiary until the incapacity is removed or the custodial trust is otherwise terminated. (3) Death of a beneficiary does not terminate the power of the custodial trustee to discharge obligations of the custodial trustee or beneficiary incurred before the termination of the custodial trust. Source: L. 99: Entire article added, p. 1221, § effective August 4. 15-1.5-118. Methods and forms for creating custodial trusts. (1) If a transaction, including a declaration with respect to or a transfer of specific property, otherwise satisfies applicable law, the criteria of section 15-1.5-102 are satisfied by: Colorado Revised Statutes 2019 Page 89 of 600 Uncertified Printout (a) The execution and either delivery to the custodial trustee or recording of an instrument in substantially the following form: TRANSFER UNDER THE "COLORADO UNIFORM CUSTODIAL TRUST ACT" I, ____________ (name of transferor or name and representative capacity if a fiduciary), transfer to ____________ (name of trustee other than transferor), as custodial trustee for ____________ (name of beneficiary) as beneficiary and as distributee on termination of the trust in absence of direction by the beneficiary under the "Colorado Uniform Custodial Trust Act", the following: (insert a description of the custodial trust property legally sufficient to identify and transfer each item of property). Dated: ______________________________________ (Signature); or (b) The execution and the recording or giving notice of its execution to the beneficiary of an instrument in substantially the following form: DECLARATION OF TRUST UNDER THE "COLORADO UNIFORM CUSTODIAL TRUST ACT" I, ____________ (name of owner of property), declare that henceforth I hold as custodial trustee for ____________ (name of beneficiary other than transferor) as beneficiary and as distributee on termination of the trust in absence of direction by the beneficiary under the "Colorado Uniform Custodial Trust Act", the following: (insert a description of the custodial trust property legally sufficient to identify and transfer each item of property). Dated: ______________________________________ (Signature). (2) Customary methods of transferring or evidencing ownership of property may be used to create a custodial trust, including any of the following: (a) Registration of a security in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance: "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act""; (b) Delivery of a certificated security, or a document necessary for the transfer of an uncertificated security, together with any necessary endorsement, to an adult other than the transferor or to a trust company as custodial trustee, accompanied by an instrument in substantially the form prescribed in paragraph (a) of subsection (1) of this section; (c) Payment of money or transfer of a security held in the name of a broker or a financial institution or its nominee to a broker or financial institution for credit to an account in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance: "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act""; (d) Registration of ownership of a life or endowment insurance policy or annuity contract with the issuer in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance: "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act""; Colorado Revised Statutes 2019 Page 90 of 600 Uncertified Printout (e) Delivery of a written assignment to an adult other than the transferor or to a trust company whose name in the assignment is designated in substance by the words: "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act""; (f) Irrevocable exercise of a power of appointment, pursuant to its terms, in favor of a trust company, an adult other than the donee of the power, or the donee who holds the power if the beneficiary is other than the donee, whose name in the appointment is designated in substance: "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act""; (g) Delivery of a written notification or assignment of a right to future payment under a contract to an obligor which transfers the right under the contract to a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, whose name in the notification or assignment is designated in substance: "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act""; (h) Execution, delivery, and recordation of a conveyance of an interest in real property in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance: "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act""; (i) Issuance of a certificate of title by an agency of a state or of the United States which evidences title to tangible personal property: (I) Issued in the name of a trust company, an adult other than the transferor, or the transferor if the beneficiary is other than the transferor, designated in substance: "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act""; or (II) Delivered to a trust company or an adult other than the transferor or endorsed by the transferor to that person, designated in substance: "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act""; or (j) Execution and delivery of an instrument of gift to a trust company or an adult other than the transferor, designated in substance: "as custodial trustee for (name of beneficiary) under the "Colorado Uniform Custodial Trust Act"". Source: L. 99: Entire article added, p. 1222, § 1, effective August 4. 15-1.5-119. Applicable law. (1) This article applies to a transfer or declaration creating a custodial trust that refers to this article if, at the time of the transfer or declaration, the transferor, beneficiary, or custodial trustee is a resident of or has its principal place of business in this state or custodial trust property is located in this state. The custodial trust remains subject to this article despite a later change in residence or principal place of business of the transferor, beneficiary, or custodial trustee, or removal of the custodial trust property from this state. (2) A transfer made pursuant to an act of another state substantially similar to this article is governed by the law of that state and may be enforced in this state. Source: L. 99: Entire article added, p. 1224, § 1, effective August 4. 15-1.5-120. Uniformity of application and construction. This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it. Colorado Revised Statutes 2019 Page 91 of 600 Uncertified Printout Source: L. 99: Entire article added, p. 1225, § 1, effective August 4. 15-1.5-121. Short title. This article may be cited as the "Colorado Uniform Custodial Trust Act". Source: L. 99: Entire article added, p. 1225, § 1, effective August 4. 15-1.5-122. Severability. If any provision of this article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable. Source: L. 99: Entire article added, p. 1225, § 1, effective August 4. POWERS OF APPOINTMENT ARTICLE 2 Powers of Appointment 15-2-101 to 15-2-304. (Repealed) Editor's note: (1) This article was numbered as articles 1 to 3 of chapter 107, C.R.S. 1963. For amendments to this article prior to its repeal in 2015, consult the 2014 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume. (2) Section 15-2-304 provided for the repeal of this article, effective July 1, 2015. (See L. 2014, pp. 782, 783.) ARTICLE 2.5 Uniform Powers of Appointment Act Law reviews: For article, "Powers of Appointment Primer--Part 1: The Colorado Uniform Powers of Appointment Act", see 47 Colo. Law. 54 (June 2018). PART 1 GENERAL PROVISIONS 15-2.5-101. Short title. This article may be cited as the "Colorado Uniform Powers of Appointment Act". Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 772, § 1, effective July 1, 2015. Colorado Revised Statutes 2019 Page 92 of 600 Uncertified Printout 15-2.5-102. Definitions. In this article: (1) "Appointee" means a person to whom a powerholder makes an appointment of appointive property. (2) "Appointive property" means property or property interest subject to a power of appointment. (3) "Blanket-exercise clause" means a clause in an instrument, which clause exercises a power of appointment and is not a specific-exercise clause. The term includes a clause that: (a) Expressly uses the words "any power" in exercising any power of appointment the powerholder has; (b) Expressly uses the words "any property" in appointing any property over which the powerholder has a power of appointment; or (c) Disposes of all property subject to disposition by the powerholder. (4) "Donor" means a person who creates a power of appointment. (5) "Exclusionary power of appointment" means a power of appointment exercisable in favor of any one or more of the permissible appointees to the exclusion of the other permissible appointees. (6) "General power of appointment" means a power of appointment exercisable in favor of the powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor of the powerholder's estate. (7) "Gift-in-default clause" means a clause identifying a taker in default of appointment. (8) "Impermissible appointee" means a person who is not a permissible appointee. (9) "Instrument" means a record. (10) "Nongeneral power of appointment" means a power of appointment that is not a general power of appointment. (11) "Permissible appointee" means a person in whose favor a powerholder may exercise a power of appointment. (12) "Person" means an individual; estate; trust; business or nonprofit entity; public corporation; government or governmental subdivision, agency, or instrumentality; or other legal entity. (13) "Powerholder" means a person in whom a donor creates a power of appointment. (14) "Power of appointment" means a power that enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointment over the appointive property. The term does not include a power of attorney. (15) "Presently exercisable power of appointment" means a power of appointment exercisable by the powerholder at the relevant time. The term: (a) Includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified time only after: (I) The occurrence of the specified event; (II) The satisfaction of the ascertainable standard; or (III) The passage of the specified time; and (b) Does not include a power exercisable only at the powerholder's death. (16) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (17) "Specific-exercise clause" means a clause in an instrument, which clause specifically refers to and exercises a particular power of appointment. Colorado Revised Statutes 2019 Page 93 of 600 Uncertified Printout (18) "Taker in default of appointment" means a person who takes all or part of the appointive property to the extent the powerholder does not effectively exercise the power of appointment. (19) "Terms of the instrument" means the manifestation of the intent of the maker of the instrument regarding the instrument's provisions as expressed in the instrument or as may be established by other evidence that would be admissible in a legal proceeding. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 772, § 1, effective July 1, 2015. 15-2.5-103. Governing law. (1) Unless the terms of the instrument creating a power of appointment manifest a contrary intent: (a) The creation, revocation, or amendment of the power is governed by the law of the donor's domicile at the relevant time; and (b) The exercise, release, or disclaimer of the power, or the revocation or amendment of the exercise, release, or disclaimer of the power, is governed by the law of the powerholder's domicile at the relevant time. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 774, § 1, effective July 1, 2015. 15-2.5-104. Supplementation by common law and principles of equity. Unless displaced by the particular provisions of this article, the principles of law and equity supplement its provisions. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 774, § 1, effective July 1, 2015. PART 2 CREATION, REVOCATION, AND AMENDMENT OF POWER OF APPOINTMENT 15-2.5-201. Creation of power of appointment. (1) A power of appointment is created only if: (a) The instrument creating the power: (I) Is valid under applicable law; and (II) Except as otherwise provided in subsection (2) of this section, transfers the appointive property; and (b) The terms of the instrument creating the power manifest the donor's intent to create in a powerholder a power of appointment over the appointive property exercisable in favor of a permissible appointee. (2) Subparagraph (II) of paragraph (a) of subsection (1) of this section does not apply to the creation of a power of appointment by the exercise of a power of appointment. (3) A power of appointment may not be created in a deceased individual. Colorado Revised Statutes 2019 Page 94 of 600 Uncertified Printout (4) Subject to an applicable rule against perpetuities, a power of appointment may be created in an unborn or unascertained powerholder. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 774, § 1, effective July 1, 2015. L. 2015: (1)(a)(II) amended, (SB 15-264), ch. 259, p. 951, § 37, effective August 5. 15-2.5-202. Nontransferability. A powerholder may not transfer a power of appointment. If a powerholder dies without exercising or releasing a power, the power lapses. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 775, § 1, effective July 1, 2015. 15-2.5-203. Presumption of unlimited authority. (1) Subject to section 15-2.5-205, and unless the terms of the instrument creating a power of appointment manifest a contrary intent, the power is: (a) Presently exercisable; (b) Exclusionary; and (c) Except as otherwise provided in section 15-2.5-204, general. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 775, § 1, effective July 1, 2015. 15-2.5-204. Exception to presumption of unlimited authority. (1) Unless the terms of the instrument creating a power of appointment manifest a contrary intent, the power is nongeneral if: (a) The power is exercisable only at the powerholder's death; and (b) The permissible appointees of the power are a defined and limited class that does not include the powerholder's estate, the powerholder's creditors, or the creditors of the powerholder's estate. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 775, § 1, effective July 1, 2015. 15-2.5-205. Rules of classification - definitions. (1) In this section, "adverse party" means a person with a substantial beneficial interest in property, which interest would be affected adversely by a powerholder's exercise or nonexercise of a power of appointment in favor of the powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor of the powerholder's estate. (2) If a powerholder may exercise a power of appointment only with the consent or joinder of an adverse party, the power is nongeneral. (3) If the permissible appointees of a power of appointment are not defined and limited, the power is exclusionary. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 775, § 1, effective July 1, 2015. Colorado Revised Statutes 2019 Page 95 of 600 Uncertified Printout 15-2.5-206. Power of the donor to revoke or amend. (1) A donor may revoke or amend a power of appointment only to the extent that: (a) The instrument creating the power is revocable by the donor; or (b) The donor reserves a power of revocation or amendment in the instrument creating the power of appointment. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 776, § 1, effective July 1, 2015. PART 3 EXERCISE OF POWER OF APPOINTMENT 15-2.5-301. Requisites for exercise of power of appointment. (1) A power of appointment may be exercised only: (a) If the instrument exercising the power is valid under applicable law; (b) If the terms of the instrument exercising the power: (I) Manifest the powerholder's intent to exercise the power; and (II) Subject to section 15-2.5-304, satisfy the requirements of exercise, if any, imposed by the donor; and (c) To the extent the appointment is a permissible exercise of the power. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 776, § 1, effective July 1, 2015. 15-2.5-302. Intent to exercise - determining intent from residuary clause. (1) In this section: (a) "Residuary clause" does not include a residuary clause containing a blanket-exercise clause or a specific-exercise clause. (b) "Will" includes a codicil and a testamentary instrument that revises another will. (2) A residuary clause in a powerholder's will, or a comparable clause in the powerholder's revocable trust, manifests the powerholder's intent to exercise a power of appointment only if: (a) The terms of the instrument containing the residuary clause do not manifest a contrary intent; (b) The power is a general power exercisable in favor of the powerholder's estate; (c) There is no gift-in-default clause or the clause is ineffective; and (d) The powerholder did not release the power. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 776, § 1, effective July 1, 2015. 15-2.5-303. Intent to exercise - after-acquired power. (1) Unless the terms of the instrument exercising a power of appointment manifest a contrary intent: Colorado Revised Statutes 2019 Page 96 of 600 Uncertified Printout (a) Except as otherwise provided in paragraph (b) of this subsection (1), a blanketexercise clause extends to a power acquired by the powerholder after executing the instrument containing the clause; and (b) If the powerholder is also the donor of the power, the clause does not extend to the power unless there is no gift-in-default clause or the gift-in-default clause is ineffective. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 776, § 1, effective July 1, 2015. 15-2.5-304. Substantial compliance with donor-imposed formal requirement. (1) A powerholder's substantial compliance with a formal requirement of appointment imposed by the donor, including a requirement that the instrument exercising the power of appointment make reference or specific reference to the power, is sufficient if: (a) The powerholder knows of and intends to exercise the power; and (b) The powerholder's manner of attempted exercise of the power does not impair a material purpose of the donor in imposing the requirement. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 777, § 1, effective July 1, 2015. 15-2.5-305. Permissible appointment. (1) A powerholder of a general power of appointment that permits appointment to the powerholder or the powerholder's estate may make any appointment, including an appointment in trust or creating a new power of appointment, that the powerholder could make in disposing of the powerholder's own property. (2) A powerholder of a general power of appointment that permits appointment only to the creditors of the powerholder or of the powerholder's estate may appoint only to those creditors. (3) Unless the terms of the instrument creating a power of appointment manifest a contrary intent, the powerholder of a nongeneral power may: (a) Make an appointment in any form, including an appointment in trust, in favor of a permissible appointee; (b) Create a general or nongeneral power in a permissible appointee; or (c) Create a nongeneral power in an impermissible appointee to appoint to one or more of the permissible appointees of the original nongeneral power. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 777, § 1, effective July 1, 2015. 15-2.5-306. Appointment to deceased appointee or permissible appointee's descendant. (1) An appointment to a deceased appointee is ineffective. (2) Unless the terms of the instrument creating a power of appointment manifest a contrary intent, a powerholder of a nongeneral power may exercise the power in favor of, or create a new power of appointment in, a descendant of a deceased permissible appointee, which deceased appointee is a descendant of one or more of the grandparents of the donor, regardless of whether the descendant is described by the donor as a permissible appointee. Colorado Revised Statutes 2019 Page 97 of 600 Uncertified Printout Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 777, § 1, effective July 1, 2015. 15-2.5-307. Impermissible appointment. (1) Except as otherwise provided in section 15-2.5-306, an exercise of a power of appointment in favor of an impermissible appointee is ineffective. (2) An exercise of a power of appointment in favor of a permissible appointee is ineffective to the extent the appointment is a fraud on the power. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 778, § 1, effective July 1, 2015. 15-2.5-308. Selective allocation doctrine. If a powerholder exercises a power of appointment in a disposition that also disposes of property the powerholder owns, the owned property and the appointive property must be allocated in the permissible manner that best carries out the powerholder's intent. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 778, § 1, effective July 1, 2015. 15-2.5-309. Capture doctrine - disposition of ineffectively appointed property under general power. (1) To the extent a powerholder of a general power of appointment, other than a power to withdraw property from, revoke, or amend a trust, makes an ineffective appointment: (a) The gift-in-default clause controls the disposition of the ineffectively appointed property; or (b) If there is no gift-in-default clause, or to the extent the clause is ineffective, the ineffectively appointed property: (I) Passes to: (A) The powerholder if the powerholder is a permissible appointee and living; or (B) If the powerholder is an impermissible appointee or deceased, the powerholder's estate if the estate is a permissible appointee; or (II) If there is no taker under subparagraph (I) of this paragraph (b), passes under a reversionary interest to the donor or to the donor's transferee or successor in interest. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 778, § 1, effective July 1, 2015. 15-2.5-310. Disposition of unappointed property under released or unexercised general power. (1) To the extent a powerholder releases or fails to exercise a general power of appointment other than a power to withdraw property from, revoke, or amend a trust: (a) The gift-in-default clause controls the disposition of the unappointed property; or (b) If there is no gift-in-default clause or to the extent the clause is ineffective: (I) Except as otherwise provided in subparagraph (II) of this paragraph (b), the unappointed property passes to: (A) The powerholder if the powerholder is a permissible appointee and living; or Colorado Revised Statutes 2019 Page 98 of 600 Uncertified Printout (B) If the powerholder is an impermissible appointee or deceased, the powerholder's estate if the estate is a permissible appointee; or (II) To the extent the powerholder released the power, or if there is no taker under subparagraph (I) of this paragraph (b), the unappointed property passes under a reversionary interest to the donor or to the donor's transferee or successor in interest. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 778, § 1, effective July 1, 2015. 15-2.5-311. Disposition of unappointed property under released or unexercised nongeneral power. (1) To the extent a powerholder releases, ineffectively exercises, or fails to exercise a nongeneral power of appointment: (a) The gift-in-default clause controls the disposition of the unappointed property; or (b) If there is no gift-in-default clause, or to the extent the clause is ineffective, the unappointed property: (I) Passes to the permissible appointees if: (A) The permissible appointees are defined and limited; and (B) The terms of the instrument creating the power do not manifest a contrary intent; or (II) If there is no taker under subparagraph (I) of this paragraph (b), passes under a reversionary interest to the donor or the donor's transferee or successor in interest. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 779, § 1, effective July 1, 2015. 15-2.5-312. Disposition of unappointed property if partial appointment to taker in default. Unless the terms of the instrument creating or exercising a power of appointment manifest a contrary intent, if the powerholder makes a valid partial appointment to a taker in default of appointment, the taker in default of appointment may share fully in unappointed property. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 779, § 1, effective July 1, 2015. 15-2.5-313. Appointment to taker in default. If a powerholder makes an appointment to a taker in default of appointment and the appointee would have taken the property under a gift-in-default clause had the property not been appointed, the power of appointment is deemed not to have been exercised and the appointee takes the property under the clause. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 779, § 1, effective July 1, 2015. 15-2.5-314. Powerholder's authority to revoke or amend exercise. (1) A powerholder may revoke or amend an exercise of a power of appointment only to the extent that: Colorado Revised Statutes 2019 Page 99 of 600 Uncertified Printout (a) The powerholder reserves a power of revocation or amendment in the instrument exercising the power of appointment and, if the power is nongeneral, the terms of the instrument creating the power of appointment do not prohibit the reservation; or (b) The terms of the instrument creating the power of appointment provide that the exercise is revocable or amendable. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 779, § 1, effective July 1, 2015. PART 4 DISCLAIMER OR RELEASE; CONTRACT TO APPOINT OR NOT TO APPOINT 15-2.5-401. Disclaimer. (1) Subject to the "Uniform Disclaimer of Property Interests Act", part 12 of article 11 of this title: (a) A powerholder may disclaim all or part of a power of appointment; and (b) A permissible appointee, appointee, or taker in default of appointment may disclaim all or part of an interest in appointive property. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 780, § 1, effective July 1, 2015. 15-2.5-402. Authority to release. A powerholder may release a power of appointment, in whole or in part, except to the extent the terms of the instrument creating the power prevent the release. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 780, § 1, effective July 1, 2015. 15-2.5-403. Method of release. (1) A powerholder of a releasable power of appointment may release the power in whole or in part: (a) By substantial compliance with a method provided in the terms of the instrument creating the power; or (b) If the terms of the instrument creating the power do not provide a method, or the method provided in the terms of the instrument is not expressly made exclusive, by: (I) Delivering a writing declaring the extent to which the power is released to a person who could be adversely affected by an exercise of the power; (II) Joining with some or all of the takers in default in making an otherwise-effective transfer of an interest in the property that is subject to the power, in which case the power is released to the extent that a subsequent exercise of the power would defeat the interest transferred; (III) Contracting with a person who could be adversely affected by an exercise of the power not to exercise the power, in which case the power is released to the extent that a subsequent exercise of the power would violate the terms of the contract; or Colorado Revised Statutes 2019 Page 100 of 600 Uncertified Printout (IV) Communicating in any other appropriate manner an intent to release the power, in which case the power is released to the extent that a subsequent exercise of the power would be contrary to manifested intent. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 780, § 1, effective July 1, 2015. 15-2.5-404. Revocation or amendment of release. (1) A powerholder may revoke or amend a release of a power of appointment only to the extent that: (a) The instrument of release is revocable by the powerholder; or (b) The powerholder reserves a power of revocation or amendment in the instrument of release. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 781, § 1, effective July 1, 2015. 15-2.5-405. Power to contract - presently exercisable power of appointment. (1) A powerholder of a presently exercisable power of appointment may contract: (a) Not to exercise the power if the contract, when made, does not confer a benefit on a person other than a taker in default or a permissible appointee; or (b) To exercise the power if the contract, when made, does not confer a benefit on an impermissible appointee. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 781, § 1, effective July 1, 2015. 15-2.5-406. Power to contract - power of appointment not presently exercisable. (1) A powerholder of a power of appointment that is not presently exercisable may contract to exercise or not to exercise the power only if the powerholder: (a) Is also the donor of the power; and (b) Has reserved the power in the instrument creating the power. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 781, § 1, effective July 1, 2015. PART 5 (Reserved) PART 6 MISCELLANEOUS PROVISIONS Colorado Revised Statutes 2019 Page 101 of 600 Uncertified Printout 15-2.5-601. Uniformity of application and construction. In applying and construing this article, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 781, § 1, effective July 1, 2015. 15-2.5-602. Relation to electronic signatures in global and national commerce act. This article modifies, limits, or supersedes the federal "Electronic Signatures in Global and National Commerce Act", 15 U.S.C. section 7001 et seq., but does not modify, limit, or supersede section 101 (c) of that act, 15 U.S.C. section 7001 (c), or authorize electronic delivery of any of the notices described in section 103 (b) of that act, 15 U.S.C. section 7003 (b). Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 781, § 1, effective July 1, 2015. 15-2.5-603. Application to existing relationships. (1) Except as otherwise provided in this article, on July 1, 2015, or on the effective date of any amendment to this article: (a) This article or any amendment to this article applies to a power of appointment created before, on, or after July 1, 2015, or any amendment to this article; (b) This article or any amendment to this article applies to any proceedings in court then pending or thereafter commenced concerning a power of appointment, except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of this article or any amendment to this article, in which case the particular provision of this article does not apply and the superseded law applies; (c) A rule of construction or presumption provided in this article or any amendment to this article applies to an instrument executed before July 1, 2015, unless there is a clear indication of a contrary intent in the terms of the instrument; (d) Except as otherwise provided in paragraphs (a) to (c) of this subsection (1), an action done before July 1, 2015, is not affected by this article or any amendment to this article; and (e) No provision of this article or of any amendment to this article shall apply retroactively if the court determines that such application would cause the provision to be retrospective in its operation in violation of section 11 of article II of the state constitution. (2) If a right is acquired, extinguished, or barred on the expiration of a prescribed period that commenced under law of this state other than this article or any amendment to this article before July 1, 2015, the law continues to apply to the right. Source: L. 2014: Entire article added, (HB 14-1353), ch. 209, p. 782, § 1, effective July 1, 2015. L. 2016: IP(1) amended, (SB 16-189), ch. 210, p. 758, § 24, effective June 6. COLORADO UNIFORM TRUST CODE ARTICLE 5 Colorado Revised Statutes 2019 Page 102 of 600 Uncertified Printout Colorado Uniform Trust Code Law reviews: For article, "The Colorado Uniform Trust Code", see 48 Colo. Law. 37 (Mar. 2019). PART 1 GENERAL PROVISIONS AND DEFINITIONS 15-5-101. Short title. This article 5 is known and may be cited as the "Colorado Uniform Trust Code" and is referred to in this article 5 as "this code" or "code". Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1144, § 1, effective January 1, 2019. 15-5-102. Scope. This code applies to express trusts, charitable or noncharitable, and trusts created pursuant to a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust. This code does not apply to a business trust, a security arrangement, a trust created by a deposit arrangement in a financial institution, or any arrangement under which a person is a nominee or escrowee for another. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1144, § 1, effective January 1, 2019. 15-5-103. Definitions. As used in this article 5, unless the context otherwise requires: (1) "Action", with respect to an act of a trustee, includes a failure to act. (2) "Alternative dispute resolution" means a method of nonjudicial dispute resolution as set forth in the trust instrument, which may include but is not limited to a method prescribed pursuant to the uniform arbitration act, part 2 of article 22 of title 13. (3) "Ascertainable standard" means a standard relating to an individual's health, education, support, or maintenance within the meaning of section 2041 (b)(1)(A) or 2514 (c)(1) of the federal "Internal Revenue Code of 1986", as amended. (4) (a) "Beneficiary" means a person who: (I) Has a present or future beneficial interest in a trust, vested or contingent; or (II) In a capacity other than that of trustee, holds a power of appointment over trust property. (b) "Beneficiary" does not include an appointee under a power of appointment unless and until the power is exercised and the trustee has knowledge of the exercise and the identity of the appointee. (5) "Business trust" has the same meaning as set forth in section 15-10-201 (6.5). (6) "Charitable trust" means a trust, or a portion of a trust, created for a charitable purpose described in section 15-5-405 (1). (7) "Conservator" means a person appointed by a court to administer the estate of a minor or adult individual. Colorado Revised Statutes 2019 Page 103 of 600 Uncertified Printout (8) "Environmental law" means a federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment. (9) "Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health, and welfare of a minor or adult individual. The term does not include a guardian ad litem. (10) "Interested person" means a qualified beneficiary or other person having a property right in or claim against a trust estate, which right or claim may reasonably and materially be affected by a judicial proceeding pursuant to this code. The term also includes fiduciaries and other persons having authority to act under the terms of the trust. (11) "Interests of the beneficiaries" means the beneficial interests provided in the terms of the trust. (12) "Jurisdiction", with respect to a geographical area, includes a state or country. (13) "Person" means an individual; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity. (14) "Power of withdrawal" means a presently exercisable general power of appointment other than a power: (a) Exercisable by a trustee and limited by an ascertainable standard; or (b) Exercisable by another person only upon consent of the trustee or a person holding an adverse interest. (15) "Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein. (16) "Qualified beneficiary" means a beneficiary who, on the date the beneficiary's qualification is determined: (a) Is a distributee or permissible distributee of trust income or principal; (b) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in subsection (16)(a) of this section terminated on that date without causing the trust to terminate; or (c) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date. (17) "Revocable", as applied to a trust, means revocable by the settlor without the consent of the trustee or a person holding an adverse interest. (18) "Settlor" means a person, including a testator, who creates, or contributes property to, a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke or has a power of withdrawal over that portion. (19) "Spendthrift provision" means a term of a trust that restrains both voluntary and involuntary transfer of a beneficiary's interest. (20) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band recognized by federal law or formally acknowledged by a state. (21) "Terms of a trust" means the manifestation of the settlor's intent regarding a trust's provisions, as expressed in the trust instrument, or as may be established by other evidence in a Colorado Revised Statutes 2019 Page 104 of 600 Uncertified Printout judicial proceeding, or in a nonjudicial settlement agreement pursuant to section 15-5-111 or by alternative dispute resolution pursuant to section 15-5-113. (22) "Trust instrument" means an instrument executed by the settlor that contains terms of the trust, including any amendments thereto. (23) "Trustee" includes an original, an additional, and a successor trustee or a cotrustee. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1144, § 1, effective January 1, 2019. 15-5-104. Knowledge. (1) Subject to subsection (2) of this section, a person has knowledge of a fact if the person: (a) Has actual knowledge of it; (b) Has received a notice or notification of it; or (c) From all the facts and circumstances known to the person at the time in question, and acting in a reasonably prudent manner given the person's experience and expertise, has reason to know it. (2) An organization that conducts activities through employees has notice or knowledge of a fact involving a trust only from the time the information was received by an employee having responsibility to act for the trust, or would have been brought to the employee's attention if the organization had exercised reasonable diligence. An organization exercises reasonable diligence if it maintains routines for communicating significant information to the employee having responsibility to act for the trust and there is reasonable compliance with the routines. Reasonable diligence does not require an employee of the organization to communicate information unless the communication is part of the individual's regular duties or the individual knows that a matter involving the trust would be materially affected by the information. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1147, § 1, effective January 1, 2019. 15-5-105. Default and mandatory rules. (1) Except as otherwise provided in the terms of the trust, this code governs the duties, rights, and powers of a trustee; relations among trustees; the rights, powers, and interests of a beneficiary; the relationship between the trustees and the beneficiaries; the purpose of the trust; and other matters with respect to the trust or the property subject to the trust. (2) Subject to sections 15-16-809, 15-16-810, and 15-16-811, the terms of a trust prevail over any provision of this code except: (a) The minimum requirements for creating the trust; (b) The duty of a trustee to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries; (c) The requirement that a trust and its terms be for the benefit of its beneficiaries and that the trust have a purpose that is lawful, not contrary to public policy, and possible to achieve; (d) The power of the court to modify or terminate a trust pursuant to sections 15-5-410 to 15-5-416; (e) (Reserved) Colorado Revised Statutes 2019 Page 105 of 600 Uncertified Printout (f) The power of the court pursuant to section 15-5-702 to require, dispense with, modify, or terminate a bond; (g) The power of the court pursuant to section 15-5-708 (2) to adjust a trustee's compensation specified in the terms of the trust that is unreasonably low or high; (h) The duty pursuant to section 15-5-813 (2)(b) and (2)(c) to provide notice of the existence of an irrevocable trust, of the identity of the trustee, and of the right to request trustee's reports to current distributees or permissible distributees of such trust at any age, or to other qualified beneficiaries of such trust who have attained twenty-five years of age; (i) The duty pursuant to section 15-5-813 (1) to respond to the request of a qualified beneficiary of an irrevocable trust for trustee's reports and other information reasonably related to the administration of a trust; (j) The effect of an exculpatory term pursuant to section 15-5-1008; (k) The rights pursuant to sections 15-5-1010 to 15-5-1013 of a person other than a trustee or beneficiary; (l) The periods of limitation for commencing a judicial proceeding; (m) Consistent with the terms of the trust and the provisions of this code, the power of the court to take such action and exercise such jurisdiction not inconsistent with a settlor's intent as may be necessary in the interests of justice; and (n) The subject matter jurisdiction of the court and venue for commencing a proceeding as provided in sections 15-5-203 and 15-5-204, unless the trust instrument requires alternative dispute resolution. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1147, § 1, effective January 1, 2019. L. 2019: IP(2) amended, (SB 19-105), ch. 51, p. 173, § 2, effective August 2. 15-5-106. Common law of trusts - principles of equity - other statutes. Unless displaced by the particular provisions of this code, the common law of trusts and principles of law and equity, and other statutes of this state, supplement its provisions. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1148, § 1, effective January 1, 2019. 15-5-107. Governing law. (1) The meaning and effect of the terms of a trust are determined by: (a) The law of the jurisdiction designated in the terms of the trust unless the designation of that jurisdiction's law is contrary to a strong public policy of the jurisdiction having the most significant relationship to the matter at issue; or (b) In the absence of a controlling designation in the terms of the trust, the law of the jurisdiction having the most significant relationship to the matter at issue. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1148, § 1, effective January 1, 2019. Colorado Revised Statutes 2019 Page 106 of 600 Uncertified Printout 15-5-108. Principal place of administration. (1) Without precluding other means for establishing a sufficient connection with the designated jurisdiction, terms of a trust designating the principal place of administration are valid and controlling if: (a) A trustee's principal place of business is located in or a trustee is a resident of the designated jurisdiction; or (b) All or part of the administration occurs in the designated jurisdiction. (2) In the case of cotrustees, the principal place of administration, if not otherwise designated in the trust instrument, is the usual place of business of the corporate trustee if there is but one corporate cotrustee, or the usual place of business or residence of the individual trustee who is a professional fiduciary if there is but one such person and no corporate cotrustee, and otherwise the usual place of business or residence of any of the cotrustees as agreed upon by them. (3) A trustee is under a continuing duty to administer the trust at a place appropriate to its purposes, its administration, and the interests of the beneficiaries. (4) Without precluding the right of the court to order, approve, or disapprove a transfer, the trustee, in furtherance of the duty prescribed by subsection (2) of this section, may transfer the trust's principal place of administration to another state or to a jurisdiction outside the United States. (5) The trustee shall notify the qualified beneficiaries of a proposed transfer of a trust's principal place of administration not less than sixty days before initiating the transfer. The notice of a proposed transfer must include: (a) The name of the jurisdiction to which the principal place of administration is to be transferred; (b) The address, e-mail address, and telephone number at the new location at which the trustee can be contacted; (c) An explanation of the reasons for the proposed transfer; (d) The date on which the proposed transfer is anticipated to occur; and (e) The date, not less than sixty days after the giving of the notice, by which the qualified beneficiary must notify the trustee of an objection to the proposed transfer. (6) If a qualified beneficiary notifies the trustee of an objection to a proposed transfer of the trust's principal place of administration, the authority of a trustee pursuant to this section to transfer a trust's principal place of administration is suspended, pending resolution of the objection. (7) In connection with a transfer of the trust's principal place of administration, the trustee may transfer some or all of the trust property to a successor trustee designated in the terms of the trust or appointed pursuant to section 15-5-704. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1149, § 1, effective January 1, 2019. 15-5-109. Methods and waiver of notice in matters other than judicial proceedings. (1) Notice to a person pursuant to this code or the sending of a document to a person pursuant to this code must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice or document. Permissible methods of notice or for sending Colorado Revised Statutes 2019 Page 107 of 600 Uncertified Printout a document include first-class mail, personal delivery, delivery to the person's last-known place of residence or place of business, or a properly directed electronic message. (2) A trustee need not provide a notice or document otherwise required pursuant to this code to a person whose identity or location is unknown to and not reasonably ascertainable by the trustee. The trustee shall maintain documentation of the trustee's reasonable efforts to ascertain the identity or location of such a person. (3) Notice pursuant to this code or the sending of a document pursuant to this code may be waived by the person who is to be notified or sent the document. (4) Notice of a judicial proceeding must be given as provided in the Colorado rules of probate procedure, the "Colorado Probate Code", and, if applicable, the Colorado rules of civil procedure. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1150, § 1, effective January 1, 2019. 15-5-110. Others treated as qualified beneficiaries. (1) Whenever notice to qualified beneficiaries of a trust is required pursuant to this code, the trustee shall also give notice to any other beneficiary who has sent the trustee a request for notice. (2) A charitable organization expressly designated to receive distributions under the terms of a charitable trust has the rights of a qualified beneficiary pursuant to this code if the charitable organization, on the date the charitable organization's qualification is being determined: (a) Is a distributee or permissible distributee of trust income or principal; (b) Would be a distributee or permissible distributee of trust income or principal upon the termination of the interests of other distributees or permissible distributees then receiving or eligible to receive distributions; or (c) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date. (3) A person appointed to enforce a trust created for the care of an animal or another noncharitable purpose as provided in section 15-5-408 or 15-5-409 has the rights of a qualified beneficiary pursuant to this code. (4) The attorney general has the rights of a qualified beneficiary with respect to a charitable trust having its principal place of administration in this state. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1150, § 1, effective January 1, 2019. 15-5-111. Nonjudicial settlement agreements. (1) Except as otherwise provided in subsection (3) of this section, any person may enter into a binding nonjudicial settlement agreement with respect to any matter involving a trust, regardless of whether the settlement agreement is supported by consideration. (2) The required parties to a nonjudicial settlement agreement are those persons whose interests in the trust would be materially affected by its provisions were the settlement agreement to be approved by the court at the time it was entered into by the parties. Colorado Revised Statutes 2019 Page 108 of 600 Uncertified Printout (3) A nonjudicial settlement agreement is valid only to the extent it does not violate a material purpose of the trust and includes terms and conditions that could be properly approved by the court pursuant to this code or other applicable law. (4) Matters that may be resolved by a nonjudicial settlement agreement include but are not limited to: (a) The interpretation or construction of the terms of the trust; (b) The approval of a trustee's report or accounting; (c) Direction to a trustee to refrain from performing a particular act or the grant to a trustee of any necessary or desirable power; (d) The resignation or appointment of a trustee and the determination of a trustee's compensation; (e) Transfer of a trust's principal place of administration; and (f) Liability of a trustee for an action relating to the trust. (5) Any person whose interest in the trust may be affected by a nonjudicial settlement agreement may request the court to approve or disapprove the nonjudicial settlement agreement, to determine whether the representation as provided in part 3 of this code was adequate, and to determine whether the agreement contains terms and conditions the court could have properly approved. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1151, § 1, effective January 1, 2019. 15-5-112. Rules of construction. Unless the terms of the trust instrument contain contrary rules of construction, the rules of construction that apply in this state to the interpretations of and disposition of property by a will or other governing instrument, as that term is defined in the "Colorado Probate Code", articles 10 to 17 of this title 15, also apply as appropriate to the interpretation of the terms of a trust and the disposition of the trust property. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1152, § 1, effective January 1, 2019. 15-5-113. Alternate dispute resolution. (1) A settlor may designate in the trust instrument a method of nonjudicial alternate dispute resolution that is valid, enforceable, and irrevocable, except on a ground that exists at law or in equity for the invalidation of a trust. Such methods of nonjudicial dispute resolution may include rules of notice and procedure. The settlor may bind beneficiaries and assigns to the methods of dispute resolution. (2) A method of nonjudicial dispute resolution provided by the settlor in the trust instrument does not preclude the court's authority to enter an order of alternate dispute resolution, which does not eliminate or negate the method of nonjudicial dispute resolution provided by the settlor except on a ground that exists at law or in equity for the invalidation of a trust. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1152, § 1, effective January 1, 2019. Colorado Revised Statutes 2019 Page 109 of 600 Uncertified Printout 15-5-114. Insurable interest of trustee - definition. (1) In this section, "settlor" means a person who executes a trust instrument. The term includes a person for which a fiduciary or agent is acting. (2) A trustee of a trust has an insurable interest in the life of an individual insured under a life insurance policy that is owned by the trustee of the trust acting in a fiduciary capacity or that designates the trust itself as the owner if, on the date the policy issued: (a) The insured is: (I) A settlor of the trust; or (II) An individual in whom a settlor of the trust has, or would have had if living at the time the policy was issued, an insurable interest; and (b) The life insurance proceeds are primarily for the benefit of one or more trust beneficiaries that have: (I) An insurable interest in the life of the insured; or (II) A substantial interest engendered by love and affection in the continuation of the life of the insured and, if not already included pursuant to subsection (2)(b)(I) of this section, who are: (A) Related within the fifth degree or closer, as measured by the civil law system of determining degrees of relation, either by blood or law, to the insured; (B) Stepchildren of the insured or their descendants; or (C) Individuals who are designated as beneficiaries of insurance policies for life insurance coverage on the life of the insured under a designated beneficiary agreement executed pursuant to article 22 of this title 15. (3) This section does not limit or abridge any insurable interest or right to insure under the common law or any other statute. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1152, § 1, effective January 1, 2019. PART 2 JUDICIAL PROCEEDINGS 15-5-201. Role of court in administration of trust. (1) The court may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law. (2) A trust is not subject to continuing judicial supervision unless ordered by the court. (3) A judicial proceeding involving a trust may relate to any matter involving the trust's administration. Such matters may include, but are not limited to, proceedings involving: (a) The appointment or removal of a trustee or trust director; (b) Review of a trustee's fees or trust director's fees and review and settling of interim or final accountings; (c) Requests for instruction; (d) Declarations of rights; (e) Determinations as to the creation, existence, and validity of all or part of a trust; Colorado Revised Statutes 2019 Page 110 of 600 Uncertified Printout (f) The ascertainment of beneficiaries, and determinations of any other questions arising in the administration of distribution of any trust, including questions of construction in trust instruments, and the existence or nonexistence of any immunity, power, privilege, duty, or right; (g) The registration or release of registration of a trust; (h) A direction to compel or refrain from performing a particular act; (i) The amendment, modification, revocation, or termination of a trust; (j) The combination or division of trusts; or (k) Equitable doctrines of cy pres, equitable deviation, and other principles of equity pertaining to charitable and other trusts. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1153, § 1, effective January 1, 2019. L. 2019: (3)(a) and (3)(b) amended, (SB 19-105), ch. 51, p. 173, § 3, effective August 2. 15-5-202. Jurisdiction over trustee and beneficiary. (1) By accepting the trusteeship of a trust having its principal place of administration in this state or by moving the principal place of administration to this state, the trustee submits personally to the jurisdiction of the courts of this state regarding any matter involving the trust. (2) With respect to their interests in the trust, the beneficiaries of a trust that has its principal place of administration in this state or that is properly registered in this state are subject to the jurisdiction of the courts of this state regarding any matter involving the trust. By accepting a distribution from such a trust, the recipient submits personally to the jurisdiction of the courts of this state regarding any matter involving the trust. (3) This section does not preclude other methods of obtaining jurisdiction over a trustee, beneficiary, or other person receiving property from the trust. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1154, § 1, effective January 1, 2019. 15-5-203. Subject matter jurisdiction. (1) The district court or, in the city and county of Denver, the probate court, has exclusive jurisdiction of proceedings in this state brought by a trustee, trust director, or beneficiary concerning the administration of a trust. (2) The district court or, in the city and county of Denver, the probate court, has concurrent jurisdiction with other district courts of this state of other proceedings involving trusts and third parties, such as proceedings by or against creditors or debtors of trusts. (3) This section does not preclude judicial or nonjudicial alternative dispute resolution. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1154, § 1, effective January 1, 2019. L. 2019: (1) amended, (SB 19-105), ch. 51, p. 174, § 4, effective August 2. 15-5-204. Venue. (1) A judicial proceeding concerning the internal affairs of trusts and involving trustees, beneficiaries, or persons with authority to act under the trust instrument must be commenced in the following order of priority: (a) The county of venue specified by the terms of the trust if that county has a substantial relationship to the present administration of the trust; Colorado Revised Statutes 2019 Page 111 of 600 Uncertified Printout (b) The county in which the trust is registered; (c) Either: (I) The county in which the trust's principal place of administration is or is to be located; or (II) If the trust is created by a will, the county in which the decedent's estate is being administered. (2) If a trust has no trustee, a judicial proceeding for the appointment of a trustee must be commenced in the following order of priority: (a) The county required pursuant to subsection (1) of this section; (b) Any of the following: (I) A county in which a beneficiary resides; (II) A county in which the trust property, or some portion of the trust property, is located; or (III) A county in which a trust director resides or has a principal place of business. (3) A judicial proceeding other than one described in subsection (1) or (2) of this section must be commenced in accordance with the rules of venue applicable to civil actions. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1154, § 1, effective January 1, 2019. L. 2019: (2)(b) amended, (SB 19-105), ch. 51, p. 174, § 5, effective August 2. 15-5-205. Registration of trusts. (1) The trustee of a trust having its principal place of administration in this state may, after its acceptance of the trust, register the trust in the court of this state at the principal place of administration unless registration would be inconsistent with the retained jurisdiction of a foreign court from which the trustee cannot obtain release. (2) Registration of a fully and concurrently revocable inter vivos trust shall not be made until such a time as the settlor's power to revoke such a trust has terminated. (3) A trust that divides the corpus into multiple trusts or a will that creates multiple trusts needs only one registration rather than a registration of each separate trust. (4) This section and sections 15-5-206 to 15-5-209 do not apply to any trust created pursuant to section 15-14-412.5 or 15-14-412.6. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1155, § 1, effective January 1, 2019. 15-5-206. Registration procedures and content of statement. (1) Registration may be accomplished by filing a trust registration statement with the court as described in section 15-5205 indicating the name and address of the trustee in which the trustee acknowledges the trusteeship. The statement must indicate whether the trust has been registered elsewhere, if known. (2) The statement must identify the trust as follows: (a) In the case of a testamentary trust, by the name of the testator and the date and place of domiciliary probate; (b) In the case of a written inter vivos trust, by the name of each settlor and the original trustee and the date of the trust instrument; or Colorado Revised Statutes 2019 Page 112 of 600 Uncertified Printout (c) In the case of an oral trust, by information identifying the settlor or other source of funds or assets and describing the time and manner of the trust's creation and the terms of the trust, including the subject matter, beneficiaries, and time of performance. (3) Within sixty days after filing the trust registration statement, the trustee shall notify in writing all cotrustees, qualified beneficiaries, and other fiduciaries and persons having authority to act under the terms of the trust. For purposes of privacy, the names of qualified beneficiaries may be redacted from the copy of the statement filed with the court or provided to other qualified beneficiaries. (4) The trust registration statement must contain language indicating that, because a court will not routinely review or adjudicate matters unless it is specifically requested to do so by a beneficiary, creditor, or other interested person, all interested persons, including beneficiaries and creditors, have the responsibility to protect their own rights and interests in the trust estate. (5) If a trust has been registered in a foreign court, registration in this state is ineffective to the extent it is inconsistent with the foreign registration until the earlier registration is released, or an instrument executed by the trustee and all qualified beneficiaries is filed with the registration in this state. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1155, § 1, effective January 1, 2019. 15-5-207. Effect of failure to register. A trustee who does not register a trust in a proper place, for purposes of any proceedings initiated by a beneficiary of the trust prior to registration, is subject to the personal jurisdiction of any court in which the trust could have been registered and otherwise as provided by section 15-5-205. In addition, any trustee who, within thirty days after receipt of a written demand by a settlor or qualified beneficiary of the trust, fails to register a trust may be subject to removal or to surcharge as the court may direct. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1156, § 1, effective January 1, 2019. 15-5-208. Registration - qualification of a foreign trustee. A foreign corporate trustee is required to qualify as a foreign corporation doing business in this state if it maintains the principal place of administration of any trust within this state. A foreign cotrustee is not required to qualify in this state solely because its cotrustee maintains the principal place of administration in this state. Unless otherwise doing business in this state, local qualification by a foreign trustee, corporate or individual, is not required in order for the trustee to receive distribution from a local estate or to hold, invest in, manage, or acquire property located in this state, or maintain litigation. Nothing in this section affects a determination of what other acts require qualification as doing business in this state. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1156, § 1, effective January 1, 2019. Colorado Revised Statutes 2019 Page 113 of 600 Uncertified Printout 15-5-209. Release of trust registration statement. (1) If a trust's principal place of administration changes after the trust has been registered in this state, the trustee may withdraw that registration by: (a) Filing a notice of release of trust registration statement in the same court in which the last registration statement was filed; and (b) Serving the notice of release upon all persons described in section 15-5-206 (3). (2) The trust registration is deemed released thirty-five days after the filing of the notice of release with the court unless an objection to the release is filed with that court and the objector files a notice to set a hearing on the objection within said period and serves the objection and the notice to set on those persons described in section 15-5-206 (3). Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1157, § 1, effective January 1, 2019. 15-5-210. Judicially approved settlements. (1) A settlement of any controversy as to the administration of a trust; the construction, validity, or effect of any trust; or the rights or interests of the beneficiaries or persons having claims against a trust, if approved in a formal proceeding in the court for that purpose, is binding on all parties thereto, including an unborn individual, an unascertained individual, or a person who could not be located. An approved settlement does not impair the rights of creditors or taxing authorities who are not parties to it. (2) Notice of a judicially approved settlement must be given to every interested person or to one who can bind an interested person as provided in this code. (3) The procedure for securing court approval of a settlement is as follows: (a) The terms of the settlement must be set forth in an agreement in writing, which must be executed by all competent persons and parents of any minor child having a beneficial interest or having claims that will or may be affected by the settlement. Execution is not required by any person whose identity or whereabouts are unknown and cannot be reasonably ascertained. (b) Any interested person, including a trustee, then may submit the settlement to the court for its approval and for execution by the trustee, the trustee of every affected testamentary trust, other fiduciaries, and representatives. (c) After notice to all interested persons or their representatives, the court, if it finds that the contest or controversy is in good faith and that the effect of the settlement upon the interests of the persons represented by the fiduciaries or representatives is just and reasonable, shall make an order approving the settlement and directing all fiduciaries under its supervision to execute the agreement. A minor child represented only by his or her parents may be bound only if there is no conflict of interest between the parent and the child. Upon the making of the order and the execution of the settlement, all further disposition of trust property affected by the settlement must be in accordance with the terms of the settlement. (4) Notice to a person who may be represented and bound pursuant to this code of an agreement to be approved by the court must be given: (a) Directly to the person or to one who may bind the person if the person may be represented and bound pursuant to section 15-5-302 or 15-5-303; or (b) In the case of a person who may be represented and bound pursuant to section 15-5304 and who is unborn or whose identity or location is unknown and not reasonably ascertainable, to all persons whose interests in the judicial proceedings are substantially identical Colorado Revised Statutes 2019 Page 114 of 600 Uncertified Printout and whose identities and locations are known; or, in the case of other persons who may be represented and bound pursuant to section 15-5-304, directly to the person. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1157, § 1, effective January 1, 2019. PART 3 REPRESENTATION 15-5-301. Representation - basic effect. (1) Notice to a person who may represent and bind another person pursuant to this part 3 has the same effect as if notice were given directly to the other person. (2) The consent of a person who may represent and bind another person pursuant to this part 3 is binding on the person represented unless the person represented objects to the representation before the consent would otherwise have become effective. (3) A person who pursuant to this part 3 may represent a settlor who lacks capacity may receive notice and give a binding consent on the settlor's behalf. (4) A settlor may not represent and bind a beneficiary pursuant to this part 3 with respect to the termination or modification of a trust pursuant to section 15-5-411 (1). Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1158, § 1, effective January 1, 2019. 15-5-301.5. Scope of representative's authority and duty of certain representatives definitions. (1) As used in this section, unless the context otherwise requires, "representative" means a representative acting pursuant to section 15-5-302, 15-5-303, 15-5-304, or 15-5-305. (2) A representative may receive notice, give consent, and otherwise represent, bind, and act on behalf of the individual represented with respect to any matter arising pursuant to this article 5, regardless of whether a judicial proceeding concerning the trust is pending. (3) In making decisions, a representative may consider general benefits accruing to the living members of the represented individual's family. (4) A representative acting pursuant to section 15-5-303 (1)(f) or section 15-5-305 shall act in good faith on behalf of the person represented. As used in this subsection (4), with respect to representatives acting pursuant to sections 15-5-303 (1)(f) and 15-5-305 only, "good faith" means honesty in fact. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1158, § 1, effective January 1, 2019. 15-5-302. Representation by a holder of general testamentary power of appointment. To the extent that there is no conflict of interest between the holder of a general testamentary power of appointment and the persons represented with respect to the particular question or dispute, the holder may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power. For persons bound by orders Colorado Revised Statutes 2019 Page 115 of 600 Uncertified Printout binding holders of a presently exercisable general power of appointment, see section 15-10-403 (3)(a). Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1159, § 1, effective January 1, 2019. 15-5-303. Representation by fiduciaries and parents. (1) To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute: (a) A conservator may represent and bind the protected person whose estate the conservator controls; (b) A guardian may represent and bind the ward if a conservator of the ward's estate has not been appointed; (c) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal; (d) A trustee may represent and bind the beneficiaries of the trust; (e) A personal representative of a decedent's estate may represent and bind persons interested in the estate; and (f) A parent may represent and bind, or appoint another person to represent and bind, the parent's minor or unborn child if a conservator or guardian for the child has not been appointed, provided that a person appointed by a settlor to represent the settlor's minor or unborn child may not be related or subordinate to the settlor within the meaning of section 672 (c) of the federal "Internal Revenue Code of 1986", as amended. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1159, § 1, effective January 1, 2019. 15-5-304. Representation by person having substantially identical interest. Unless otherwise represented, a minor, an incapacitated person, or an unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1159, § 1, effective January 1, 2019. 15-5-305. Appointment of representative. If the court determines that an interest is not represented pursuant to this part 3, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, an incapacitated person, a protected person, or an unborn individual, or a person whose identity or location is unknown. A representative may be appointed to represent several persons or interests. Colorado Revised Statutes 2019 Page 116 of 600 Uncertified Printout Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1160, § 1, effective January 1, 2019. PART 4 CREATION, VALIDITY, MODIFICATION, AND TERMINATION OF TRUST 15-5-401. Methods of creating trust. (1) A trust may be created by: (a) Transfer of property to another person as trustee during the settlor's lifetime or by will or other disposition taking effect upon the settlor's death; (b) Declaration by the owner of property that the owner holds identifiable property as trustee; (c) Exercise of a power of appointment in favor of a trustee; or (d) A statute, judgment, or decree authorizing the creation of a trust. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1160, § 1, effective January 1, 2019. 15-5-402. Requirements for creation. (1) A trust is created only if: (a) Either: (I) The settlor has capacity to create a trust and indicates an intention to create a trust; or (II) A statute, judgment, or decree authorizes creation of a trust; (b) The trust has a definite beneficiary or is: (I) A charitable trust; (II) A trust for the care of an animal, as provided in section 15-5-408; or (III) A trust for a noncharitable purpose, as provided in section 15-5-409; (c) The trustee has duties to perform; and (d) The same person is not the sole trustee and sole beneficiary. (2) A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities. (3) A power in a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1160, § 1, effective January 1, 2019. 15-5-403. Trusts created in other jurisdictions. (1) A trust not created by a will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, or the law of the jurisdiction in which, at the time of creation: (a) The settlor was domiciled, had a place of abode, or was a national; (b) A trustee was domiciled or had a place of business; or (c) Any trust property was located. Colorado Revised Statutes 2019 Page 117 of 600 Uncertified Printout Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1161, § 1, effective January 1, 2019. 15-5-404. Trust purposes. A trust may be created only to the extent its purposes are lawful, not contrary to public policy, and possible to achieve. A trust and its terms must be for the benefit of its beneficiaries. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1161, § 1, effective January 1, 2019. 15-5-405. Charitable purposes - enforcement. (1) A charitable trust may be created for the relief of poverty; the advancement of education or religion; the promotion of health, governmental, or municipal purposes; or other purposes the achievement of which is beneficial to the community. (2) If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, the trustee, if authorized by the terms of the trust, or, if not, the court, may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor's intention to the extent that such intention can be ascertained. (3) The settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1161, § 1, effective January 1, 2019. 15-5-406. Creation of trust induced by fraud, duress, or undue influence. A trust is void to the extent its creation was induced by fraud, duress, or undue influence. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1161, § 1, effective January 1, 2019. 15-5-407. Evidence of oral trust. Except as required by a statute other than this article 5, a trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established only by clear and convincing evidence. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1161, § 1, effective January 1, 2019. 15-5-408. Trust for care of an animal. Subject to this section and section 15-5-409.5, a trust for the care of designated domestic or pet animals and the animals' offspring in gestation is valid. For purposes of this section, the determination of the "animals' offspring in gestation" is made at the time the designated domestic or pet animals become present beneficiaries of the trust. Unless the trust instrument provides for an earlier termination, the trust terminates when no living animal is covered by the trust. A trust instrument must be liberally construed to bring the trust within this section, to presume against the merely precatory or honorary nature of its disposition, and to carry out the general intent of the settlor. Extrinsic evidence is admissible in Colorado Revised Statutes 2019 Page 118 of 600 Uncertified Printout determining the settlor's intent. Any trust pursuant to this section is an exception to any statutory or common law rule against perpetuities. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1161, § 1, effective January 1, 2019. 15-5-409. Noncharitable trust without ascertainable beneficiary. Subject to section 15-5-409.5 and except as provided pursuant to sections 38-30-110 to 38-30-112, if a trust is for a specific, lawful, noncharitable purpose or for lawful, noncharitable purposes to be selected by the trustee, and there is no definite or definitely ascertainable beneficiary designated, the trust may be performed by the trustee for twenty-one years but no longer, regardless of whether the terms of trust contemplate a longer duration. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1162, § 1, effective January 1, 2019. 15-5-409.5. Additional provisions applicable to noncharitable trusts without ascertainable beneficiary and trusts for care of animal. (1) In addition to the provisions of sections 15-5-408 and 15-5-409, a trust covered by either of those sections is subject to the following provisions: (a) Except as expressly provided otherwise in the trust instrument, no portion of the principal or income may be converted to the use of the trustee, other than reasonable trustee fees and expenses of administration, or to any use other than for the trust's purposes or for the benefit of a covered animal or animals; (b) Upon termination, the trustee shall transfer the unexpended trust property in the following order: (I) As directed in the trust instrument; (II) If the trust was created in a nonresiduary clause in the settlor's will or in a codicil to the settlor's will, under the residuary clause in the settlor's will; and (III) If no taker is produced by the application of subsections (1)(b)(I) and (1)(b)(II) of this section, to the settlor's heirs pursuant to part 5 of article 11 of this title 15; (c) (Reserved) (d) The intended use of the principal or income can be enforced by an individual designated for that purpose in the trust instrument, by the person having custody of an animal for which care is provided by the trust instrument, by a remainder beneficiary, or, if none, by an individual appointed by a court upon application to it by an individual; (e) All trusts created pursuant to this section may be registered, and all trustees are subject to the laws of this state applying to trusts and trustees; and (f) (Reserved) (g) (I) If no trustee is designated or no designated trustee is willing or able to serve, a court shall name a trustee. A court may order the transfer of the property to another trustee if required to ensure that the intended use is carried out and if: (A) No successor trustee is designated in the trust instrument; or (B) No designated successor trustee agrees to serve or is able to serve. Colorado Revised Statutes 2019 Page 119 of 600 Uncertified Printout (II) A court may also make such other orders and determinations as shall be advisable to carry out the intent of the settlor and the purposes of sections 15-5-408 and 15-5-409. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1162, § 1, effective January 1, 2019. 15-5-410. Modification or termination of trust - proceedings for approval or disapproval. (1) In addition to the methods of termination prescribed by sections 15-5-411 to 15-5-414, a trust terminates to the extent that: (a) The trust is revoked or expires pursuant to its terms; (b) No purpose of the trust remains to be achieved; or (c) The purposes of the trust have become unlawful, contrary to public policy, or impossible to achieve. (2) A proceeding to approve or disapprove a proposed modification or termination pursuant to sections 15-5-411 to 15-5-416, or trust combination or division pursuant to section 15-5-417, may be commenced by a trustee or a beneficiary. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1163, § 1, effective January 1, 2019. 15-5-411. Modification or termination of noncharitable irrevocable trust by consent. (1) If, upon petition, the court finds that the settlor and all beneficiaries consent to the modification or termination of a noncharitable irrevocable trust, the court shall approve the modification or termination even if the modification or termination is inconsistent with a material purpose of the trust. A settlor's consent to a trust's modification or termination may be given by an agent under a power of attorney only to the extent expressly authorized by the power of attorney or the terms of the trust, by the settlor's conservator with the approval of the court supervising the conservatorship if an agent is not so authorized, or by the settlor's guardian with the approval of the court supervising the guardianship if an agent is not so authorized and a conservator has not been appointed. (2) Other than a trust established by court order under Title XIX of the federal "Social Security Act", 42 U.S.C. sec. 1396p (d)(4), a noncharitable irrevocable trust may: (a) Be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust; or (b) Be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust. (3) A spendthrift provision in the terms of a trust is not presumed to constitute a material purpose of the trust. (4) Upon termination of a trust pursuant to subsection (1) or (2) of this section, the trustee shall distribute the trust property as agreed by the beneficiaries. (5) If not all of the beneficiaries consent to a proposed modification or termination of a trust pursuant to subsection (1) or (2) of this section, the modification or termination may be approved by the court if the court is satisfied that: (a) If all of the beneficiaries had consented, the trust could have been modified or terminated pursuant to this section; and Colorado Revised Statutes 2019 Page 120 of 600 Uncertified Printout (b) The interests of a beneficiary who does not consent will be adequately protected. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1163, § 1, effective January 1, 2019. 15-5-412. Modification or termination because of unanticipated circumstances or inability to administer trust effectively. (1) The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification must be made in accordance with the settlor's probable intention. (2) The court may modify the administrative terms of a trust if continuation of the trust on its existing terms would be impracticable or wasteful or impair the trust's administration. (3) Upon termination of a trust pursuant to this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1164, § 1, effective January 1, 2019. 15-5-413. Cy pres. (1) Except as otherwise provided in subsection (2) of this section, if a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful: (a) The trust does not fail, in whole or in part; (b) The trust property does not revert to the settlor or the settlor's successors in interest; and (c) The court may apply cy pres to modify or terminate the trust by directing that the trust property be applied or distributed, in whole or in part, in a manner consistent with the settlor's charitable purposes. (2) A provision in the terms of a charitable trust that would result in distribution of the trust property to a noncharitable beneficiary prevails over the power of the court pursuant to subsection (1) of this section to apply cy pres to modify or terminate the trust only if, when the provision takes effect: (a) The trust property is to revert to the settlor and the settlor is still living; or (b) Fewer than twenty-one years have elapsed since the date of the trust's creation. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1164, § 1, effective January 1, 2019. 15-5-414. Modification or termination of uneconomic trust. (1) After notice to the qualified beneficiaries, the trustee of a trust property having a total value less than one hundred thousand dollars may terminate the trust if the trustee concludes that the value of the trust property is insufficient to justify the cost of administration. (2) The court may modify or terminate a trust or remove the trustee and appoint a different trustee if it determines that the value of the trust property is insufficient to justify the cost of administration. Colorado Revised Statutes 2019 Page 121 of 600 Uncertified Printout (3) Upon termination of a trust pursuant to this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust. (4) This section does not apply to an easement for conservation or preservation. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1165, § 1, effective January 1, 2019. 15-5-415. Reformation to correct mistakes. The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intention if it is proved by clear and convincing evidence that the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1165, § 1, effective January 1, 2019. 15-5-416. Modification to achieve settlor's tax objectives. To achieve the settlor's tax objectives, the court may modify the terms of a trust in a manner that is not contrary to the settlor's probable intention. The court may provide that the modification has retroactive effect. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1165, § 1, effective January 1, 2019. 15-5-417. Combination and division of trusts. After notice to the qualified beneficiaries and trust directors, a trustee may combine two or more trusts into a single trust or divide a trust into two or more separate trusts, if the result does not impair the rights of any beneficiary or adversely affect achievement of the purposes of the trust. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1165, § 1, effective January 1, 2019. L. 2019: Entire section amended, (SB 19-105), ch. 51, p. 174, § 6, effective August 2. PART 5 (Reserved) PART 6 REVOCABLE TRUSTS 15-5-601. (Reserved) 15-5-602. Revocation or amendment of revocable trust. (1) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection (1) does not apply to a trust created under an instrument executed before August 7, 2013. Colorado Revised Statutes 2019 Page 122 of 600 Uncertified Printout (2) Unless the terms of a trust expressly provide otherwise, if a revocable trust is created or funded by more than one settlor: (a) To the extent the trust consists of community property, the trust may be revoked by either spouse acting alone, with regard to the portion of the trust property attributable to that settlor's contribution, but may be amended only by joint action of both spouses; (b) To the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution; and (c) Upon the revocation or amendment of the trust by fewer than all of the settlors, the trustee shall promptly notify the other settlors of the revocation or amendment. (3) The settlor may revoke or amend a revocable trust: (a) By substantial compliance with a method provided in the terms of the trust; or (b) If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by any other method manifesting clear and convincing evidence of the settlor's intent, which may include a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust. A provision in a trust specifying a method to revoke or amend the trust does not make the specified method exclusive unless the specified 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. (4) Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs. (5) A settlor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust or the power. (6) Unless the terms of a trust expressly provide otherwise, or the power to do so has been expressly granted to another person, a conservator of the settlor or, if no conservator has been appointed, a guardian of the settlor, may exercise the settlor's powers with respect to revocation, amendment, or distribution of trust property, but only with the approval of the court supervising the conservatorship or guardianship. (7) A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or the settlor's successors in interest for distributions made and other actions taken on the assumption that the trust has not been amended or revoked. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1166, § 1, effective January 1, 2019. 15-5-603. Settlor's powers. (1) To the extent a trust is revocable by a settlor, a trustee may follow a direction of the settlor that is contrary to the terms of the trust. To the extent a trust is revocable by a settlor in conjunction with a person other than a trustee or person holding an adverse interest, the trustee may follow a direction from the settlor and the other person holding the power to revoke, even if the direction is contrary to the terms of the trust. (2) To the extent a trust is revocable, rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor. Colorado Revised Statutes 2019 Page 123 of 600 Uncertified Printout (3) During the period the power may be exercised, the holder of a power of withdrawal has the rights of a settlor of a revocable trust under this section to the extent of the property subject to the power. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1167, § 1, effective January 1, 2019. L. 2019: Entire section amended, (SB 19-105), ch. 51, p. 174, § 7, effective August 2. 15-5-604. Limitation on action contesting validity of revocable trust. (1) (a) A person must commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor's death within the earlier of: (I) Three years after the settlor's death; or (II) One hundred twenty days after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address, and of the time allowed for commencing a proceeding. A trustee is not liable to any person for giving or failing to give notice under this section. (b) The applicable time limit described in subsection (1)(a) of this section is an absolute bar that may not be waived or tolled. (2) Upon the death of the settlor of a trust that was revocable at the settlor's death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for doing so unless: (a) The trustee knows of a pending judicial proceeding contesting the validity of the trust; or (b) A potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within sixty days after the contestant sent the notification. (3) Unless a distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a beneficiary of a trust that is determined to have been invalid, or a distributee of property improperly distributed or paid, or a claimant who is improperly paid, is liable for the return of the property improperly received and its income, if any, since the distribution, if he or she has the property. If he or she does not have the property, then he or she is liable for the return of the value as of the date of his or her disposition of the property improperly received, and its income and gain, if any received by him or her. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1167, § 1, effective January 1, 2019. PART 7 OFFICE OF TRUSTEE 15-5-701. Accepting or declining trusteeship. (1) Except as otherwise provided in subsection (3) of this section, a person designated as trustee accepts the trusteeship: (a) By substantially complying with a method of acceptance provided in the terms of the trust; or Colorado Revised Statutes 2019 Page 124 of 600 Uncertified Printout (b) If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as a trustee, or otherwise indicating acceptance of the trusteeship. A provision in a trust specifying a method to accept or decline trusteeship does not make the specified method exclusive unless the specified method is referred to as the "sole", "exclusive", or "only" method of accepting or declining trusteeship or the provision includes similar language manifesting that the settlor's intent was that the trusteeship may not be accepted or declined by any other method. (2) A person designated as trustee who has not yet accepted the trusteeship may reject the trusteeship. A designated trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is deemed to have rejected the trusteeship. (3) A person designated as a trustee, without accepting the trusteeship, may: (a) Act to preserve the trust property if, within a reasonable time after acting, the person sends a rejection of the trusteeship to the settlor or, if the settlor is dead or lacks capacity, to any acting trustee and a qualified beneficiary; and (b) Inspect or investigate trust property to determine potential liability under environmental or other law or for any other purpose. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1168, § 1, effective January 1, 2019. 15-5-702. Trustee's bond. (1) A trustee shall give bond to secure performance of the trustee's duties only if the court finds that a bond is needed to protect the interests of the beneficiaries or is required by the terms of the trust and the court has not dispensed with the requirement. (2) The court may specify the amount of a bond, its liabilities, and whether sureties are necessary. The court may modify or terminate a bond at any time. (3) Unless otherwise directed by the court or the terms of the trust, the cost of a bond is charged to the trust. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1168, § 1, effective January 1, 2019. 15-5-703. Cotrustees. (1) Cotrustees who are unable to reach a unanimous decision may act by majority decision. (2) If a vacancy occurs in a cotrusteeship, the remaining cotrustees may act for the trust. (3) Subject to section 15-16-812, a cotrustee shall participate in the performance of a trustee's function unless the cotrustee is unavailable to perform the function because of absence, illness, disqualification, or other temporary incapacity or the cotrustee has properly delegated the performance of the function to another trustee. (4) If a cotrustee is unavailable to perform duties because of absence, illness, disqualification, or other temporary incapacity, and prompt action is necessary to achieve the purposes of the trust or to avoid injury to the trust property, the remaining cotrustee or a majority of the remaining cotrustees may act for the trust. Colorado Revised Statutes 2019 Page 125 of 600 Uncertified Printout (5) A trustee may not delegate to a costrustee the performance of a function the settlor reasonably expected the trustees to perform jointly. Unless a delegation was irrevocable, a trustee may revoke a delegation previously made. (6) Except as otherwise provided in subsection (7) of this section, a trustee who does not join in an action of another trustee is not liable for the action. (7) Subject to section 15-16-812, each trustee shall exercise reasonable care to: (a) Prevent a cotrustee from committing a serious breach of trust; and (b) Pursue a remedy, at trust expense, for a cotrustee's serious breach of trust. (8) A dissenting trustee who joins in an action at the direction of the majority of the trustees and who notified any cotrustee of the dissent at or before the time of the action is not liable for the action unless the action is a serious breach of trust. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1169, § 1, effective January 1, 2019. L. 2019: (3) and IP(7) amended, (SB 19-105), ch. 51, p. 175, § 8, effective August 2. 15-5-704. Vacancy in trusteeship - appointment of successor. (1) A vacancy in a trusteeship occurs if: (a) A person designated as trustee rejects the trusteeship; (b) A person designated as trustee cannot be identified or does not exist; (c) A trustee resigns; (d) A trustee is disqualified or removed; (e) A trustee dies; or (f) A guardian or conservator is appointed for an individual serving as trustee. (2) If one or more cotrustees remain in office, a vacancy in a trusteeship need not be filled. A vacancy in a trusteeship must be filled if the trust has no remaining trustee. (3) A vacancy in a trusteeship of a noncharitable trust that is required to be filled must be filled in the following order of priority: (a) By a person designated in the terms of the trust to act as successor trustee; (b) By a person appointed by unanimous agreement of the qualified beneficiaries; or (c) By a person appointed by the court. (4) A vacancy in a trusteeship of a charitable trust that is required to be filled must be filled in the following order of priority: (a) By a person designated in the terms of the trust to act as successor trustee; (b) By a person selected by the charitable organizations expressly designated to receive distributions under the terms of the trust if the attorney general is provided written notice of the selection and fails to object or concurs in the selection within thirty days of such notice; or (c) By a person appointed by the court. (5) Regardless of whether a vacancy in a trusteeship exists or is required to be filled, the court may appoint an additional trustee or special fiduciary whenever the court considers the appointment necessary for the administration of the trust. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1169, § 1, effective January 1, 2019. Colorado Revised Statutes 2019 Page 126 of 600 Uncertified Printout 15-5-705. Resignation of trustee. (1) A trustee may resign: (a) Upon at least thirty days' notice to the qualified beneficiaries; the settlor, if living; and all cotrustees; or (b) With the approval of the court. (2) In approving a resignation pursuant to this section, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property. (3) Any liability of a resigning trustee or of any sureties on the trustee's bond for acts or omissions of the trustee is not discharged or affected by the trustee's resignation. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1170, § 1, effective January 1, 2019. 15-5-706. Removal of trustee. (1) The settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on its own initiative. (2) The court may remove a trustee if: (a) The trustee has committed a serious breach of trust; (b) Lack of cooperation among cotrustees substantially impairs the administration of the trust; (c) Because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or (d) (I) There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries; (II) The court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust; and (III) A suitable cotrustee or successor trustee is available. (3) Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order such appropriate relief pursuant to section 15-5-1001 (2) as may be necessary to protect the trust property or the interests of the beneficiaries. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1171, § 1, effective January 1, 2019. 15-5-707. Delivery of property by former trustee. (1) Unless a cotrustee remains in office or the court otherwise orders, and until the trust property is delivered to a successor trustee or other person entitled to it, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property. (2) A trustee who has resigned or been removed shall proceed expeditiously to deliver the trust property within the trustee's possession to the cotrustee, successor trustee, or other person entitled to it. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1171, § 1, effective January 1, 2019. Colorado Revised Statutes 2019 Page 127 of 600 Uncertified Printout 15-5-708. Compensation of trustee. (1) If the terms of the trust do not specify the trustee's compensation, a trustee's compensation is determined in accordance with part 6 of article 10 of this title 15. (2) If the terms of a trust specify the trustee's compensation, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if the compensation specified by the terms of the trust would be unreasonably low or high as determined in accordance with the factors set forth in part 6 of article 10 of this title 15 and taking into consideration whether the duties of the trustee are substantially different from those contemplated when the trust was created. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1171, § 1, effective January 1, 2019. 15-5-709. Reimbursement of expenses. (1) A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate, for: (a) Expenses that were properly incurred in the administration of the trust; and (b) To the extent necessary to prevent unjust enrichment of the trust, expenses that were not properly incurred in the administration of the trust. (2) A reasonable advance by the trustee of money for the protection of the trust gives rise to a lien against trust property to secure reimbursement with reasonable interest. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1172, § 1, effective January 1, 2019. PART 8 DUTIES AND POWERS OF TRUSTEE 15-5-801. Duty to administer trust. Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with this article 5. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1172, § 1, effective January 1, 2019. 15-5-802. Duty of loyalty. (1) A trustee shall administer the trust solely in the interests of the beneficiaries. (2) Subject to the rights of persons dealing with or assisting the trustee as provided in section 15-5-1012, a sale, encumbrance, or other transaction involving the investment or management of trust property entered into by the trustee for the trustee's own personal account or that is otherwise affected by a conflict between the trustee's fiduciary and personal interests is voidable by a beneficiary affected by the transaction unless: (a) The transaction was authorized by the terms of the trust; (b) The transaction was approved by the court; Colorado Revised Statutes 2019 Page 128 of 600 Uncertified Printout (c) The beneficiary did not commence a judicial proceeding within the time allowed by section 15-5-1005; (d) The beneficiary consented to the trustee's conduct, ratified the transaction, or released the trustee in compliance with section 15-5-1009; or (e) The transaction involves a contract entered into or claim acquired by the trustee before the person became or contemplated becoming trustee. (3) A sale, encumbrance, or other transaction involving the investment or management of trust property is presumed to be affected by a conflict between personal and fiduciary interests if it is entered into by the trustee with: (a) The trustee's spouse; (b) The trustee's descendants, siblings, parents, or their spouses; (c) An agent or attorney of the trustee; or (d) A corporation or other person or enterprise in which the trustee, or a person that owns a significant interest in the trustee, has an interest that might affect the trustee's best judgment. (4) A transaction between a trustee and a beneficiary that does not concern trust property but that occurs during the existence of the trust or while the trustee retains significant influence over the beneficiary and from which the trustee obtains an advantage is voidable by the beneficiary unless the trustee establishes that the transaction was fair to the beneficiary. (5) A transaction not concerning trust property, and in which the trustee engages in the trustee's individual capacity, involves a conflict between personal and fiduciary interests if the transaction concerns an opportunity properly belonging to the trust. (6) An investment by a trustee in securities of an investment company or investment trust to which the trustee or its affiliate provides services in a capacity other than as trustee is not presumed to be affected by a conflict between personal and fiduciary interests if the investment otherwise complies with the "Colorado Uniform Prudent Investor Act", article 1.1 of this title 15. In addition to its compensation for acting as trustee, the trustee may be compensated by the investment company or investment trust for providing those services out of fees charged to the trust. If the trustee receives compensation from the investment company or investment trust for providing investment advisory or investment management services, the trustee must at least annually notify the persons entitled pursuant to section 15-5-813 to receive a copy of the trustee's annual report of the rate and method by which that compensation was determined. (7) In voting shares of stock or in exercising powers of control over similar interests in other forms of enterprise, the trustee shall act in the best interests of the beneficiaries. If the trust is the sole owner of a corporation or other form of enterprise, the trustee shall elect or appoint directors or other managers who will manage the corporation or enterprise in the best interests of the beneficiaries. (8) This section does not preclude the following transactions, if fair to the beneficiaries: (a) An agreement between a trustee and a beneficiary relating to the appointment or compensation of the trustee; (b) Payment of reasonable compensation to the trustee; (c) A transaction between a trust and another trust, decedent's estate, guardianship, or conservatorship of which the trustee is a fiduciary or in which a beneficiary has an interest; (d) A deposit of trust money in a regulated financial service institution operated by the trustee; or Colorado Revised Statutes 2019 Page 129 of 600 Uncertified Printout (e) An advance by the trustee of money for the protection of the trust. (9) The court may appoint a special fiduciary to make a decision with respect to any proposed transaction that might violate this section if entered into by the trustee. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1172, § 1, effective January 1, 2019. 15-5-803. Impartiality. If a trust has two or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing the trust property, taking into account any differing interests of the beneficiaries. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1174, § 1, effective January 1, 2019. 15-5-804. Prudent administration. A trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1174, § 1, effective January 1, 2019. 15-5-805. Costs of administration. In administering a trust, the trustee may incur only costs that are appropriate and reasonable in relation to the trust property, the purposes of the trust, and the skills of the trustee. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1174, § 1, effective January 1, 2019. 15-5-806. Trustee's skills. A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's representation that the trustee has special skills or expertise, has a duty to use those special skills or expertise. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1174, § 1, effective January 1, 2019. 15-5-807. Delegation by trustee. (1) A trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in: (a) Selecting an agent; (b) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and (c) Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation. Colorado Revised Statutes 2019 Page 130 of 600 Uncertified Printout (2) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation. (3) A trustee who complies with subsection (1) of this section is not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated. (4) By accepting a delegation of powers or duties from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1174, § 1, effective January 1, 2019. 15-5-808. Powers to direct. (Reserved) 15-5-809. Control and protection of trust property. A trustee shall take reasonable steps to take control of and protect the trust property. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1175, § 1, effective January 1, 2019. 15-5-810. Record keeping and identification of trust property. (1) A trustee shall keep adequate records of the administration of the trust. (2) A trustee shall keep trust property separate from the trustee's own property. (3) (a) Except as otherwise provided in subsection (4) of this section, a trustee shall cause the trust property to be designated so that the interest of the trust, to the extent feasible, appears in records maintained by a party other than a trustee or beneficiary. (b) Nothing in subsection (3)(a) of this section may be construed as preventing a trustee from holding a property in the name of a nominee or other form, without disclosure of the trust, as authorized in section 15-5-816 (1)(g)(II) and in section 15-1-804 (2)(o), provided the trustee maintains adequate records of all trust property so held. (c) This subsection (3) does not apply to tangible personal property other than motor vehicles, airplanes, and other property the title of which is registered with a governmental authority. (4) If the trustee maintains records clearly indicating the respective interests, a trustee may invest as a whole the property of two or more separate trusts. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1175, § 1, effective January 1, 2019. 15-5-811. Enforcement and defense of claims. A trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust of which the trustee has knowledge. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1175, § 1, effective January 1, 2019. Colorado Revised Statutes 2019 Page 131 of 600 Uncertified Printout 15-5-812. Collecting trust property. A trustee shall take reasonable steps to compel a former trustee or other person to deliver trust property to the trustee and to redress a breach of trust known to the trustee to have been committed by a former trustee. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1176, § 1, effective January 1, 2019. 15-5-813. Duty to inform and report. (1) A trustee shall keep the qualified beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable under the circumstances, a trustee shall promptly respond to a qualified beneficiary's request for information related to the administration of the trust. (2) A trustee: (a) Upon request of a qualified beneficiary, shall promptly furnish to the qualified beneficiary a copy of the portions of the trust instrument that describe or affect the beneficiary's interest; (b) Within sixty days after accepting a trusteeship, shall notify the qualified beneficiaries of the acceptance and of the trustee's name, address, and telephone number; (c) Within sixty days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settlor or otherwise, shall notify the qualified beneficiaries of the trust's existence, of the identity of the settlor or settlors, of the right to request portions of the trust instrument that describe or affect the beneficiary's interest, and of the right to a trustee's report as provided in subsection (3) of this section; and (d) Shall notify the qualified beneficiaries in advance of any change in the method or rate of the trustee's compensation. (3) (a) At least annually and at the termination of the trust, a trustee shall send to the distributees or permissible distributees of trust income or principal, and to other qualified beneficiaries who request it: (I) A report of the trust property, liabilities, receipts, and disbursements, including the source and amount of the trustee's compensation; and (II) A listing of the trust assets and, if feasible, their respective market values. (b) Upon a vacancy in a trusteeship, unless a cotrustee remains in office, the former trustee shall send a report to the qualified beneficiaries. A personal representative, conservator, or guardian may send the qualified beneficiaries a report on behalf of a deceased or incapacitated trustee. (4) A qualified beneficiary may waive the right to a trustee's report or other information required to be furnished pursuant to this section. A qualified beneficiary, with respect to future reports and other information, may withdraw a waiver previously given. (5) Subsections (2)(b) and (2)(c) of this section do not apply to a trustee who accepts a trusteeship before January 1, 2019, to an irrevocable trust created before January 1, 2019, or to a revocable trust that becomes irrevocable before January 1, 2019. (6) Nothing in this section may be construed to impose on the trustee a duty to inform or report to any person other than a qualified beneficiary or as directed by the court. Colorado Revised Statutes 2019 Page 132 of 600 Uncertified Printout Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1176, § 1, effective January 1, 2019. 15-5-814. Discretionary powers - tax savings. (1) (a) Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust, including the use of such terms as "absolute", "sole", or "uncontrolled", the trustee shall exercise a discretionary power in good faith. The parameters for that exercise are established by the terms and purposes of the trust, the interests of the beneficiaries, and relevant fiduciary duties. A trustee does not abuse its discretion if the trustee, following the terms and purposes of the trust and considering the interests of its beneficiaries, exercises its judgment honestly and with a proper motive. (b) Where a trust gives a trustee unlimited discretion, including the use of such terms as "absolute", "sole", or "uncontrolled", a court may not determine that a trustee abused its discretion merely because the court would have exercised the discretion in a different manner or would not have exercised the discretion. (2) Subject to subsection (4) of this section, and unless the terms of the trust expressly indicate that a rule in this subsection (2) does not apply: (a) A person other than a settlor who is a beneficiary and trustee of a trust that confers on the trustee a power to make discretionary distributions to or for the trustee's personal benefit may exercise the power only in accordance with an ascertainable standard; and (b) A trustee may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee personally owes another person. (3) A power whose exercise is limited or prohibited by subsection (2) of this section may be exercised by a majority of the remaining trustees whose exercise of the power is not so limited or prohibited. If the power of all trustees is so limited or prohibited, the court may appoint a special fiduciary with authority to exercise the power. (4) Subsection (2) of this section does not apply to: (a) A power held by the settlor's spouse who is the trustee of a trust for which a marital deduction, as defined in section 2056 (b)(5) or 2523 (e) of the federal "Internal Revenue Code of 1986", as amended, was previously allowed; (b) Any trust during any period that the trust may be revoked or amended by its settlor; or (c) A trust, if contributions to the trust qualify for the annual exclusion under section 2503 (c) of the federal "Internal Revenue Code of 1986", as amended. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1177, § 1, effective January 1, 2019. 15-5-815. General powers of trustee. (1) A trustee, without authorization by the court, may exercise: (a) Powers conferred by the terms of the trust; and (b) Except as limited by the terms of the trust: (I) All powers over the trust property that an unmarried competent owner has over individually owned property; (II) Any other powers appropriate to achieve the proper investment, management, and distribution of the trust property; and Colorado Revised Statutes 2019 Page 133 of 600 Uncertified Printout (III) Any other powers conferred by this code and the "Colorado Fiduciaries' Powers Act", part 8 of article 1 of this title 15. (2) The exercise of a power is subject to the fiduciary duties prescribed by this code. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1178, § 1, effective January 1, 2019. 15-5-816. Specific powers of trustee. (1) Without limiting the authority conferred by section 15-5-815, and in addition to the powers conferred pursuant to the "Colorado Fiduciaries' Powers Act", part 8 of article 1 of this title 15, a trustee may: (a) Collect trust property and accept or reject additions to the trust property from a settlor or any other person; (b) Acquire or sell property, for cash or on credit, at public or private sale; (c) Exchange, partition, or otherwise change the character of trust property; (d) Deposit trust money in an account in a regulated financial service institution; (e) Borrow money, with or without security, and mortgage or pledge trust property for a period within or extending beyond the duration of the trust; (f) With respect to an interest in a proprietorship, partnership, limited liability company, business trust, corporation, or other form of business or enterprise, continue the business or other enterprise and take any action that may be taken by shareholders, members, or property owners, including merging, dissolving, or otherwise changing the form of business organization or contributing additional capital; (g) With respect to stocks or other securities, exercise the rights of an absolute power, including the right to: (I) Vote or give proxies to vote, with or without power of substitution, or enter into or continue a voting trust agreement; (II) Hold a security in the name of a nominee or in other form without disclosure of the trust so that title may pass by delivery; (III) Pay calls, assessments, and other sums chargeable or accruing against the securities, and sell or exercise stock subscription or conversion rights; and (IV) Deposit the securities with a depositary or other regulated financial service institution; (h) With respect to an interest in real property, construct, or make ordinary or extraordinary repairs to, alterations to, or improvements in, buildings or other structures; demolish improvements; raze existing or erect new party walls or buildings; subdivide or develop land; dedicate land to public use or grant public or private easements; and make or vacate plats and adjust boundaries; (i) Enter into a lease for any purpose as lessor or lessee, including a lease or other arrangement for exploration and removal of natural resources, with or without the option to purchase or renew, for a period within or extending beyond the duration of the trust; (j) Grant an option involving a sale, lease, or other disposition of trust property or acquire an option for the acquisition of property, including an option exercisable beyond the duration of the trust, and exercise an option so acquired; (k) Insure the property of the trust against damage or loss and insure the trustee, the trustee's agents, and beneficiaries against liability arising from the administration of the trust; Colorado Revised Statutes 2019 Page 134 of 600 Uncertified Printout (l) Abandon or decline to administer property of no value or insufficient value to justify its collection or continued administration; (m) With respect to possible liability for violation of environmental law: (I) Inspect or investigate property the trustee holds or has been asked to hold, or property owned or operated by an organization in which the trustee holds or has been asked to hold an interest, for the purpose of determining the application of environmental law with respect to the property; (II) Take action to prevent, abate, or otherwise remedy any actual or potential violation of any environmental law affecting property held directly or indirectly by the trustee, whether taken before or after the assertion of a claim or the initiation of government enforcement; (III) Decline to accept property into trust or disclaim any power with respect to property that is or may be burdened with liability for violation of environmental law; (IV) Compromise claims against the trust that may be asserted for an alleged violation of environmental law; and (V) Pay the expense of any inspection, review, abatement, or remedial action to comply with environmental law; (n) Pay or contest any claim, settle a claim by or against the trust, and release, in whole in or in part, a claim belonging to the trust; (o) Pay taxes, assessments, compensation of the trustee and of employees and agents of the trust, and other expenses incurred in the administration of the trust; (p) Exercise elections with respect to federal, state, and local taxes; (q) Select a mode of payment under any employee benefit or retirement plan, annuity, or life insurance payable to the trustee, exercise rights thereunder, including exercise of the right to indemnification for expenses and against liabilities, and take appropriate action to collect the proceeds; (r) (Reserved) (s) (Reserved) (t) Appoint a trustee to act in another jurisdiction with respect to trust property located in the other jurisdiction, confer upon the appointed trustee all of the powers and duties of the appointing trustee, require that the appointed trustee furnish security, and remove any trustee so appointed; (u) Pay an amount distributable to a beneficiary who is under a legal disability or who the trustee reasonably believes is incapacitated, by paying it directly to the beneficiary or applying it for the beneficiary's benefit or by: (I) Paying it to the beneficiary's conservator or, if the beneficiary does not have a conservator, the beneficiary's guardian; (II) Paying it to the beneficiary's custodian pursuant to the "Colorado Uniform Transfers to Minors Act", article 50 of title 11, or custodial trustee pursuant to the "Colorado Uniform Custodial Trust Act", article 1.5 of this title 15, and for that purpose, creating a custodianship of custodial trust; (III) If the trustee does not know of a conservator, guardian, custodian, or custodial trustee, paying it to an adult relative or other person having legal or physical care or custody of the beneficiary, to be expended on the beneficiary's behalf; or (IV) Managing it as a separate fund on the beneficiary's behalf, subject to the beneficiary's continuing right to withdraw the distribution; Colorado Revised Statutes 2019 Page 135 of 600 Uncertified Printout (v) On distribution of trust property or the division or termination of a trust, make distributions in divided or undivided interests, allocate particular assets in proportionate or disproportionate shares, value the trust property for those purposes, and adjust for resulting differences in valuation; (w) Resolve a dispute concerning the interpretation of the trust or its administration by mediation, arbitration, or other procedure for alternate dispute resolution; (x) Prosecute or defend an action, claim, or judicial proceeding in any jurisdiction to protect trust property and the trustee in the performance of the trustee's duties; (y) Sign and deliver contracts and other instruments that are useful to achieve or facilitate the exercise of the trustee's powers; and (z) On termination of the trust, exercise the powers appropriate to wind up the administration of the trust and distribute the trust property to the persons entitled to it. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1178, § 1, effective January 1, 2019. 15-5-817. Distribution on termination. (1) Upon termination or partial termination of a trust, the trustee may send to the beneficiaries a proposal for distribution. The right of any beneficiary to object to the proposed distribution terminates if the beneficiary does not notify the trustee of an objection within thirty days after the proposal was sent, but only if the proposal informed the beneficiary of the right to object and of the time allowed for objection. (2) Upon the occurrence of an event terminating or partially terminating a trust, the trustee shall proceed expeditiously to distribute the trust property to the persons entitled to it, subject to the right of the trustee to retain a reasonable reserve for the payments of debts, expenses, and taxes. (3) A release by a beneficiary of a trustee from liability for breach of trust is invalid to the extent: (a) It was induced by improper conduct of the trustee; or (b) The beneficiary, at the time of the release, did not know of the beneficiary's rights or of the material facts relating to the breach. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1181, § 1, effective January 1, 2019. 15-5-818. Reimbursement for taxes - definitions. (1) As used in this section: (a) "Independent trustee" means a trustee who is not related or subordinate to the settlor within the meaning of section 672 (c) of the federal "Internal Revenue Code of 1986", as amended. (b) "Settlor" means the grantor or another person treated as the owner of any portion of a trust under section 671 of the federal "Internal Revenue Code of 1986", as amended. (2) Unless otherwise provided in the governing instrument, an independent trustee of a trust may, from time to time, in the trustee's discretion, distribute to the settlor an amount equal to any income taxes on any portion of the trust's taxable income for which the settlor is liable. (3) A trustee shall not exercise or participate in the exercise of discretion pursuant to this section that would cause the inclusion of the trust assets in the settlor's gross taxable estate for Colorado Revised Statutes 2019 Page 136 of 600 Uncertified Printout federal estate tax purposes at the time of exercise or in a manner inconsistent with the qualification of all or any portion of the trust for the federal gift or estate tax marital deduction, to the extent the trust is intended to qualify for such deduction. (4) The provisions of this section do not apply to: (a) Any trust by which a future estate is indefeasibly vested in the United States or a political subdivision thereof for exclusively public purposes; (b) A corporation organized exclusively for religious, charitable, scientific, literary, or educational purposes, including the encouragement of art and the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, and no substantial part of the activities of which is carrying on propaganda or otherwise attempting to influence legislation; (c) A trustee, or a fraternal society, order, or association operating under the lodge system, provided the principal or income of such trust is to be used by such trustee or by such fraternal society, order, or association exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, and no substantial part of the activities of such trustee or of such fraternal society, order, or association is carrying on propaganda or otherwise attempting to influence legislation; or (d) Any veterans' organization incorporated by an act of congress, or any department or local chapters or posts of such an organization, no part of the net earnings of which inures to the benefit of any private shareholder or individual. (5) A creditor of the settlor of an irrevocable trust is not entitled to attach or otherwise reach any trust property due to the power granted to a trustee or other third party by the terms of the trust, court order, agreement of the beneficiaries, or any other provision of law, including subsection (2) of this section, to reimburse the settlor of the trust an amount for which the settlor is liable for income tax on the taxable income of the trust. (6) The provisions of this section apply to all trusts unless an independent trustee of a trust elects otherwise in writing. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1182, § 1, effective January 1, 2019. PART 9 (Reserved) PART 10 LIABILITY OF TRUSTEES AND RIGHTS OF PERSONS DEALING WITH TRUSTEES 15-5-1001. Remedies for breach of trust. (1) A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust. (2) To remedy a breach of trust that has occurred or may occur, the court may: (a) Compel the trustee to perform the trustee's duties; (b) Enjoin the trustee from committing a breach of trust; Colorado Revised Statutes 2019 Page 137 of 600 Uncertified Printout (c) Compel the trustee to redress a breach of trust by paying money, restoring property, being surcharged or sanctioned, or other means; (d) Order a trustee to account, provide a status or financial report, or provide an inventory; (e) Appoint a special fiduciary to take possession of the trust property and administer the trust; (f) Restrain, restrict, or suspend the trustee; (g) Remove the trustee as provided in section 15-5-706; (h) Reduce or deny compensation to the trustee or require the trustee to disgorge compensation previously paid; (i) Subject to section 15-5-1012, void an act of the trustee, impose a lien or constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds; or (j) Order other appropriate relief. (3) If a remedy for a breach of trust is sought by a cotrustee, beneficiary, or interested person, or the court acts sua sponte, the provisions of part 5 of article 10 of this title 15 apply. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1183, § 1, effective January 1, 2019. 15-5-1002. Damages for breach of trust. (1) In addition to other remedies provided by this article 5, a trustee who commits a breach of trust is liable to the beneficiaries affected for the greater of: (a) The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; or (b) The profit the trustee made, or the benefit the trustee received, other than reasonable compensation, by reason of the breach. (2) Except as otherwise provided in this subsection (2), if more than one trustee is liable to the beneficiaries for a breach of trust, a trustee is entitled to contribution from the other trustee or trustees. A trustee is not entitled to contribution if the trustee was substantially more at fault than another trustee or if the trustee committed the breach of trust in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. A trustee who received a benefit from the breach of trust is not entitled to contribution from another trustee to the extent of the benefit received. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1184, § 1, effective January 1, 2019. 15-5-1003. Damages in absence of breach. (1) A trustee is accountable to an affected beneficiary for any profit made by the trustee arising from the administration of the trust, even absent a breach of trust. (2) Absent a breach of trust, a trustee is not liable to a beneficiary for a loss or depreciation in the value of trust property or for not having made a profit. Colorado Revised Statutes 2019 Page 138 of 600 Uncertified Printout Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1184, § 1, effective January 1, 2019. 15-5-1004. Compensation and costs. Except as otherwise provided in this article 5, the provisions of part 6 of article 10 of this title 15 govern the entitlement to and payment of compensation and costs to trustees, their attorneys, and third parties involved with trusts. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1184, § 1, effective January 1, 2019. 15-5-1005. Limitation of actions against trustee. (1) A beneficiary may not commence a proceeding against a trustee for breach of trust more than one year after the date that the beneficiary or a person who may represent and bind the beneficiary, as provided in part 3 of this article 5, was sent a report that adequately disclosed the existence of a potential claim for breach of trust and informed the beneficiary of the time allowed for commencing a proceeding. (2) A report adequately discloses the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or representative knows of the potential claim or should have inquired into its existence. (3) If subsection (1) of this section does not apply, a judicial proceeding by a beneficiary against a trustee for breach of trust must be commenced within three years after the first to occur of: (a) The removal or resignation of the trustee; (b) The termination of the beneficiary's interest in the trust; or (c) The termination of the trust. (4) For purposes of subsection (1) of this section, a beneficiary is deemed to have been sent a report if: (a) In the case of a beneficiary having capacity, it is sent to the beneficiary; or (b) In the case of a beneficiary who, pursuant to part 3 of this article 5, may be represented and bound by another person, it is sent to the other person. (5) This section does not preclude an action to recover for fraud or misrepresentation related to the report. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1185, § 1, effective January 1, 2019. 15-5-1006. Reliance on trust instrument. A trustee who acts in reasonable reliance on the terms of the trust is not liable to a beneficiary for a breach of trust to the extent the breach resulted from the reliance. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1185, § 1, effective January 1, 2019. 15-5-1007. Event affecting administration or distribution. If the happening of an event, including marriage, divorce, performance of educational requirements, or death, affects Colorado Revised Statutes 2019 Page 139 of 600 Uncertified Printout the administration or distribution of a trust, a trustee who has exercised reasonable care to ascertain the happening of the event is not liable for a loss resulting from the trustee's lack of knowledge. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1185, § 1, effective January 1, 2019. 15-5-1008. Exculpation of trustee. (1) A term of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that it: (a) Relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries; or (b) Was inserted as the result of an abuse by the trustee of a fiduciary or confidential relationship to the settlor. (2) An exculpatory term drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless the trustee proves that the exculpatory term is fair under the circumstances and that its existence and contents were adequately communicated to the settlor. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1185, § 1, effective January 1, 2019. 15-5-1009. Beneficiary's consent, release, or ratification. (1) A trustee is not liable to a beneficiary for breach of trust if the beneficiary consented to the conduct constituting the breach, released the trustee from liability for the breach, or ratified the transaction constituting the breach, unless: (a) The consent, release, or ratification of the beneficiary was induced by improper conduct of the trustee; or (b) At the time of the consent, release, or ratification, the beneficiary did not know of the beneficiary's rights or of the material facts relating to the breach. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1186, § 1, effective January 1, 2019. 15-5-1010. Limitation on personal liability of trustee. (1) Except as otherwise provided in the contract, a trustee is not personally liable on a contract properly entered into in the trustee's fiduciary capacity in the course of administering the trust if the trustee in the contract disclosed the fiduciary capacity. (2) A trustee is personally liable for torts committed in the course of administering a trust, or for obligations arising from ownership or control of trust property, including liability for violation of environmental law, only if the trustee is personally at fault. (3) A claim based on a contract entered into by a trustee in the trustee's fiduciary capacity, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the trustee's fiduciary capacity, whether or not the trustee is personally liable for the claim. Colorado Revised Statutes 2019 Page 140 of 600 Uncertified Printout (4) The question of liability as between the trust estate and the trustee 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 trustee is not personally liable for making a distribution of property that does not take into consideration the possible birth of a posthumously conceived child unless, prior to the distribution, the trustee received notice or acquired actual knowledge that: (a) There is or may be 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 trust assets. (6) If a trustee has reviewed the records of the county clerk and recorder in every county in Colorado in which the trustee has actual knowledge that the decedent was domiciled at any time during the three years prior to the decedent's death and the trustee 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 trustee is not individually liable for distributions made to devisees or heirs at law that do not take into consideration the designated beneficiary agreement. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1186, § 1, effective January 1, 2019. 15-5-1011. Interest as a general partner. (1) Except as provided in subsection (3) of this section, or unless personal liability is imposed in the contract, a trustee who holds an interest as a general partner in a general or limited partnership is not personally liable on a contract entered into by the partnership after the trust's acquisition of the interest if the fiduciary capacity was disclosed in the contract or in a statement previously filed pursuant to the "Colorado Uniform Partnership Act (1997)", article 64 of title 7, or the "Colorado Uniform Limited Partnership Act of 1981", article 62 of title 7. (2) Except as otherwise provided in subsection (3) of this section, a trustee who holds an interest as a general partner is not personally liable for torts committed by the partnership or for obligations arising from ownership or control of the interest unless the trustee is personally at fault. (3) The immunity provided by this section does not apply if an interest in the partnership is held by the trustee in a capacity other than that of trustee or is held by the trustee's spouse or one or more of the trustee's descendants, siblings, or parents, or the spouse of any of them. (4) If the trustee of a revocable trust holds an interest as a general partner, the settlor is personally liable for contracts and other obligations of the partnership as if the settlor were a general partner. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1187, § 1, effective January 1, 2019. 15-5-1012. Protection of person dealing with trustee. (1) A person other than a beneficiary who in good faith assists a trustee, or who in good faith and for value deals with a Colorado Revised Statutes 2019 Page 141 of 600 Uncertified Printout trustee, without knowledge that the trustee is exceeding or improperly exercising the trustee's powers, is protected from liability as if the trustee were properly exercising the power. (2) A person other than a beneficiary who in good faith deals with a trustee is not required to inquire into the extent of the trustee's powers or the propriety of their exercise and, in the absence of contrary knowledge, may assume the existence and proper use of the power being exercised. (3) A person who in good faith delivers assets to a trustee need not ensure their proper application. (4) A person other than a beneficiary who in good faith assists a former trustee, or who in good faith and for value deals with a former trustee, without knowledge that the trusteeship has terminated, is protected from liability as if the former trustee were still a trustee. (5) Comparable protective provisions of other laws relating to commercial transactions or transfer of securities by fiduciaries prevail over the protection provided by this section. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1188, § 1, effective January 1, 2019. 15-5-1013. Certification of trust. (1) Instead of furnishing a copy of the trust instrument to a person other than a beneficiary, the trustee may furnish to the person a certification of trust containing the following information: (a) That the trust exists and the date the trust instrument was executed; (b) The identity of the settlor; (c) The identity and address of the currently acting trustee; (d) The powers of the trustee in the pending transaction; (e) The revocability or irrevocability of the trust and the identity of any person holding a power to revoke the trust; (f) The authority of cotrustees to sign or otherwise authenticate and whether all or less than all are required in order to exercise powers of the trustee; and (g) The name in which title to trust property may be taken. (2) A certification of trust may be signed or otherwise authenticated by any trustee. (3) A certification of trust must state that the trust has not been revoked, modified, or amended in any manner that would cause the representations contained in the certification of trust to be incorrect. (4) A certification of trust need not contain the dispositive terms of a trust. (5) A recipient of a certification of trust may require the trustee to furnish copies of those excerpts from the original trust instrument and later amendments that designate the trustee and confer upon the trustee the power to act in the pending transaction. (6) A person who acts in reliance upon a certification of trust without knowledge that the representations contained therein are incorrect is not liable to any person for so acting and may assume without inquiry the existence of the facts contained in the certification. Knowledge of the terms of the trust may not be inferred solely from the fact that a copy of all or part of the trust instrument is held by the person relying upon the certification. (7) A person who in good faith enters into a transaction in reliance upon a certification of trust may enforce the transaction against the trust property as if the representations contained in the certification were correct. Colorado Revised Statutes 2019 Page 142 of 600 Uncertified Printout (8) A person making a demand for the trust instrument in addition to a certification of trust or excerpts is liable for costs, expenses, attorney fees, and damages if the court determines that the person did not act in good faith in demanding the trust instrument. (9) This section does not limit the right of a person to obtain a copy of the trust instrument in a judicial proceeding concerning the trust. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1188, § 1, effective January 1, 2019. PART 11 (Reserved) PART 12 (Reserved) PART 13 LIFE INSURANCE POLICY OWNED BY A TRUSTEE 15-5-1301. Life insurance policy owned by a trustee - definition. (1) Notwithstanding any other provision of law and the provisions of the "Colorado Uniform Prudent Investor Act", article 1.1 of this title 15, a trustee may not acquire or hold as a trust asset a life insurance policy on the life of a person unless the trustee has an insurable interest, as described in section 15-5114, in the person. A trustee who acquires as a trust asset a life insurance policy on the life of a person in whom the trustee has an insurable interest may continue to hold the life insurance policy without liability for loss arising from the trustee's failure to: (a) Determine whether the policy is or remains a proper investment; (b) Investigate the financial strength of the life insurance company; (c) Exercise or not exercise any option, right, or privilege available under the policy, including financing the payment of premiums, unless there is sufficient cash or there are other readily marketable trust assets from which to pay premiums, regardless of whether the exercise or nonexercise of these powers results in the lapse or termination of the policy; (d) Inquire about or investigate the health or financial condition of any insured under the policy; or (e) Retain the policy without regard to any lack of diversification of trust assets resulting from ownership of such policy and without regard to the terms and conditions of the policy. (2) (a) This section does not relieve a trustee 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: (I) The trustee has given written notice of such intended purchase to all qualified beneficiaries of the trust as defined in section 15-1-402 (10.5), or to their legal representatives, and either receives written consent to such purchase from qualified beneficiaries or does not receive from a qualified beneficiary a response to written notice by the trustee within thirty days Colorado Revised Statutes 2019 Page 143 of 600 Uncertified Printout after the mailing of such notice to the qualified beneficiary or legal representative at his or her last known address; or (II) The trust agreement contains a provision that permits purchases of life insurance from an affiliate. (b) For purposes of this section, an "affiliated company" has the same meaning as set forth in 15 U.S.C. sec. 80a-2 (a)(2). (3) This section applies to a trust established before, on, or after August 7, 2013, and to a life insurance policy acquired, retained, or owned by a trustee before, on, or after August 7, 2013. (4) Notwithstanding the provisions of this section, this section does not apply to any trust that expressly provides that this section does not apply to such trust, or to any trust that otherwise provides for a different standard of fiduciary care or obligation greater than that provided in this section; except that a trust may not permit a trustee to acquire or hold as a trust asset a life insurance policy on the life of a person in whom the trustee does not hold an insurable interest. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1189, § 1, effective January 1, 2019. PART 14 MISCELLANEOUS PROVISIONS 15-5-1401. Uniformity of application and construction. In applying and construing the language of this article 5 that is consistent with uniform law, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1191, § 1, effective January 1, 2019. 15-5-1402. Electronic records and signatures. The provisions of this article 5 governing the legal effect, validity, or enforceability of electronic records or electronic signatures, and of contracts formed or performed with the use of such records or signatures, conform to the requirements of section 102 of the federal "Electronic Signatures in Global and National Commerce Act", 15 U.S.C. sec. 7002, and supersede, modify, and limit the requirements of the federal "Electronic Signatures in Global and National Commerce Act", 15 U.S.C. sec. 7001 et seq. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1191, § 1, effective January 1, 2019. 15-5-1403. Severability clause. If any provision of this article 5 or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions of Colorado Revised Statutes 2019 Page 144 of 600 Uncertified Printout applications of this article 5 that can be given effect without the invalid provision or application, and to this end the provisions of this article 5 are severable. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1191, § 1, effective January 1, 2019. 15-5-1404. Application to existing relationships. (1) Except as otherwise provided in this article 5, on January 1, 2019: (a) This article 5 applies to all trusts created before, on, or after January 1, 2019; (b) This article 5 applies to all judicial proceedings concerning trusts commenced on or after January 1, 2019; (c) This article 5 applies to judicial proceedings concerning trusts commenced before January 1, 2019, unless the court finds that application of a particular provision of this article 5 would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case the particular provision of this article 5 does not apply and the superseded law applies; (d) Any rule of construction or presumption provided in this article 5 applies to trust instruments executed before January 1, 2019, unless there is a clear indication of a contrary intent in the terms of the trust; and (e) An act done before January 1, 2019, is not affected by this article 5. (2) If a right is acquired, extinguished, or barred upon the expiration of a prescribed period that has commenced to run pursuant to any other statute before January 1, 2019, then the period prescribed by that statute as it existed prior to January 1, 2019, continues to apply to the right, even if the statute has been repealed or suspended. Source: L. 2018: Entire article added, (SB 18-180), ch. 169, p. 1191, § 1, effective January 1, 2019. COLORADO PROBATE CODE Editor's note: (1) Articles 10 to 17 of this title were numbered as articles 1 to 8 of chapter 153, C.R.S. 1963. The substantive provisions of these articles were repealed and reenacted in 1973, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to these articles prior to 1973, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of these articles, see the comparative tables located in the back of the index. (2) Articles 10 to 17 of this title, the Colorado Probate Code, are an adaptation of the Uniform Probate Code with some additions, deletions, and changes. The comments appearing with the Uniform Probate Code located on the National Conference of Commissioners on Uniform State Laws website would be helpful in understanding certain sections of this code. Cross references: For dead man's statute, see § 13-90-102; for investment of estate funds, see part 3 of article 1 of this title; for investment of veterans' estate funds, see § 28-5-301; for estate income tax, see § 39-22-104; for rule against perpetuities nullified as to designated trust, see §§ 38-30-110 to 38-30-114; for motor vehicle title by bequest or inheritance, see § 42Colorado Revised Statutes 2019 Page 145 of 600 Uncertified Printout 6-114; for uniform veterans' guardianship law, see part 2 of article 5 of title 28; for powers of appointment as affecting wills and estates, see article 2 of this title; for witnesses, see part 1 of article 90 of title 13; for the Colorado estate tax, see article 23.5 of title 39. ARTICLE 10 General Provisions, Definitions, Jurisdiction Law reviews: For article, "The Revocable Living Trust Revisited", see 18 Colo. Law. 225 (1989); for article, "Twenty-Six Reasons for Caution in Using Revocable Trusts", see 21 Colo. Law. 1131 (1992). PART 1 SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS 15-10-101. Short title. Articles 10 to 17 of this title shall be known and may be cited as the "Colorado Probate Code" and is referred to in said articles as "this code" or "code". Source: L. 73: R&RE, p. 1538, § 1. C.R.S. 1963: § 153-1-101. 15-10-102. Purposes - rule of construction. (1) This code shall be liberally construed and applied to promote its underlying purposes and policies. (2) The underlying purposes and policies of this code are: (a) To simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons; (b) To discover and make effective the intent of a decedent in distribution of his property; (c) To promote a speedy and efficient system for settling the estate of the decedent and making distribution to his successors; (d) To facilitate use and enforcement of certain trusts; (d.1) To promote a speedy and efficient system for managing and protecting the estates of protected persons so that assets may be preserved for application to the needs of protected persons and their dependents; (d.2) To provide a system of general and limited guardianships for minors and incapacitated persons and to coordinate guardianships and protective proceedings concerned with management and protection of the estates of incapacitated persons; (e) To make uniform the law among the various jurisdictions. (3) Under this code, the rights of partners in a civil union created pursuant to the "Colorado Civil Union Act", article 15 of title 14, C.R.S., are the same rights as those extended to spouses who are married pursuant to the provisions of the "Uniform Marriage Act", part 1 of article 2 of title 14, C.R.S. Colorado Revised Statutes 2019 Page 146 of 600 Uncertified Printout Source: L. 73: R&RE, p. 1538, § 1. C.R.S. 1963: § 153-1-102. L. 88: (2)(d.1) and (2)(d.2) added, p. 649, § 1, effective July 1. L. 2013: (3) added, (SB 13-011), ch. 49, p. 164, § 17, effective May 1. 15-10-103. Supplementary general principles of law applicable. Unless displaced by the particular provisions of this code, the principles of law and equity supplement its provisions. Source: L. 73: R&RE, p. 1539, § 1. C.R.S. 1963: § 153-1-103. 15-10-104. Severability. If any provision of this code or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the code which can be given effect without the invalid provision or application, and to this end the provisions of this code are declared to be severable. Source: L. 73: R&RE, p. 1539, § 1. C.R.S. 1963: § 153-1-104. 15-10-105. Construction against implied repeal. This code is a general act intended as a unified coverage of its subject matter, and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided. Source: L. 73: R&RE, p. 1539, § 1. C.R.S. 1963: § 153-1-105. 15-10-106. Effect of fraud and evasion. Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this code or if fraud is used to avoid or circumvent the provisions or purposes of this code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser) benefitting from the fraud, whether innocent or not. Any proceeding must be commenced within five years after the discovery of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate. Source: L. 73: R&RE, p. 1539, § 1. C.R.S. 1963: § 153-1-106. 15-10-106.5. Petition to determine cause and date of death resulting from disaster body unidentifiable or missing. (1) If the occurrence of a disaster has been declared by proclamation of the governor under section 24-33.5-704, C.R.S., and it appears that a person has died as a direct result, but the remains have not been located or are unidentifiable, the coroner, sheriff, or district attorney for the county in which any part of such disaster occurred, the spouse, next of kin, or public administrator for such county, or, thirty days after the disaster was declared, any other person, may apply to the coroner of such county asking that the coroner determine the cause, manner, and date of death of the alleged decedent. (2) (a) Such application shall contain the facts and circumstances concerning the disaster, the reasons for the belief that the alleged decedent perished, a statement that the alleged decedent's remains have not been located or are unidentifiable, and the names and addresses of all persons known or believed to be heirs at law of the alleged decedent. Colorado Revised Statutes 2019 Page 147 of 600 Uncertified Printout (b) The application shall contain an affidavit in which the applicant states the following information to the extent of the applicant's personal knowledge, information, and belief: (I) The full name of the alleged decedent; (II) The alleged decedent's residential address, including city, county, and zip code; (III) The alleged decedent's date and place of birth; (IV) The alleged decedent's sex, race, ethnicity, and social security number; (V) The full names of the alleged decedent's parents and the mother's maiden name; (VI) The applicant's name, address, telephone number, and relationship to the alleged decedent; (VII) The identification number of any missing person report filed concerning the alleged decedent; (VIII) The date and time of the applicant's last contact with the alleged decedent and a description of that contact; (IX) The basis for the belief that the alleged decedent was physically present at the time and place of an occurrence declared under section 24-33.5-704, C.R.S.; (X) A description of the efforts undertaken by the applicant, and efforts the applicant knows others to have undertaken, to locate or identify the alleged decedent; (XI) Whether the alleged decedent served in the armed forces of the United States and, if so, the branch and dates of service; (XII) If the alleged decedent was employed, the name of the alleged decedent's employer and the employer's address and telephone number; and (XIII) The alleged decedent's marital status, the name of spouse, and wife's maiden name, if applicable. (c) The applicant shall pay an application fee of twenty-five dollars when filing the application. (d) The coroner shall assign an application number to the application. (3) If the coroner finds sufficient evidence that a disaster occurred and that the alleged decedent named in the application may be presumed to have died, then the coroner shall issue a certificate of death under this section. (4) A certified copy of an order issued pursuant to subsection (7) of this section shall be sufficient when presented to the coroner or other person acting in place of the coroner for the issuance of a certificate of death under this section. (5) An application for the finding of death under this section shall not be filed later than five years following the initial proclamation of the disaster. (6) This section shall apply only under the circumstances specified in subsection (1) of this section. In all other cases and if the coroner finds the evidence insufficient to support the issuance of a death certification, the provisions of section 15-10-107 with respect to determination of death and status apply. (7) If the coroner denies or fails to act within thirty days on an application that complies with subsection (2) of this section, the applicant may file a petition, in the district court for the county in which any part of the disaster occurred or in the Denver probate court if any part of the disaster occurred in the city and county of Denver, for an expedited determination of death in accordance with this section. If the court determines the alleged decedent died, a certified copy of the court's order shall constitute sufficient evidence for the coroner under subsection (4) of this section. Colorado Revised Statutes 2019 Page 148 of 600 Uncertified Printout Source: L. 77: Entire section added, p. 838, § 1, effective July 1. L. 83: (1) amended, p. 964, § 1, effective July 1, 1984. L. 92: (1) amended, p. 1042, § 6, effective March 12. L. 2004: Entire section amended, p. 624, § 1, effective August 4. L. 2013: (1) and (2)(b)(IX) amended, (HB 13-1300), ch. 316, p. 1675, § 36, effective August 7. 15-10-107. Evidence of death or status. (1) In addition to the rules of evidence in courts of general jurisdiction, the following rules relating to a court determination of death and status apply: (a) Death occurs when an individual is determined dead under section 12-240-140. (b) An authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie evidence of the fact, place, date, and time of death and the identity of the decedent. (c) An authenticated copy of any record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report. (d) In the absence of prima facie evidence of death under paragraph (b) or (c) of this subsection (1), the fact of death shall be established by clear and convincing evidence, including circumstantial evidence. (e) An individual whose death is not established under paragraphs (a) to (d) of this subsection (1) or under section 15-10-106.5 who is absent for a continuous period of five years, during which he or she has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. His or her death is presumed to have occurred at the end of the period unless there is sufficient evidence, including, without limitation, a determination under section 15-10-106.5 that death occurred earlier. (f) In the absence of evidence disputing the time of death stated on a document described in paragraph (b) or (c) of this subsection (1), a document described in paragraph (b) or (c) of this subsection (1) that states a time of death one hundred twenty hours or more after the time of death of another individual, however the time of death of the other individual is determined, establishes by clear and convincing evidence that the individual survived the other individual by one hundred twenty hours. (2) In the event that the fact of death of an absentee is entered in any action brought before a finding of death is entered in a formal testacy proceeding under this code, the finding relating to death of the absentee in such action shall not be determinative of any finding to be made in any proceeding under this code. Source: L. 73: R&RE, p. 1539, § 1. C.R.S. 1963: § 153-1-107. L. 94: Entire section R&RE, p. 969, § 1, effective July 1, 1995. L. 2004: IP(1) and (1)(e) amended, p. 626, § 2, effective August 4. L. 2019: (1)(a) amended, (HB 19-1172), ch. 136, p. 1670, § 79, effective October 1. 15-10-108. Acts by holder of general power. For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, to register a trust, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all coholders of a presently exercisable general power of Colorado Revised Statutes 2019 Page 149 of 600 Uncertified Printout appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent that their interests (as objects, takers in default, or otherwise) are subject to the power. Source: L. 73: R&RE, p. 1540, § 1. C.R.S. 1963: § 153-1-108. 15-10-109. Remarriage of absentee's spouse. (1) At any time after a finding of death of an absentee in a formal testacy proceeding under this code, the spouse of an absentee may remarry, and: (a) Such subsequent marriage shall not constitute the offense of bigamy or any other criminal offense under the laws of this state, even though the absentee shall later be determined to be alive; and (b) Upon such subsequent marriage, the marriage between the absentee and his said spouse shall be deemed to have been dissolved as of the date of the absentee's death as determined in accordance with section 15-10-107. Source: L. 73: R&RE, p. 1540, § 1. C.R.S. 1963: § 153-1-109. 15-10-110. Insurance and other contracts - surrender value - effect of contract provisions - suit on claim of death. (1) A finding of death in a formal testacy proceeding under this code shall be fully effective as to rights under insurance, annuity, and endowment contracts dependent upon the life of an absentee, and the receipts of beneficiaries for payments made under any such contracts shall be a release to the contract issuer of all claims under such contracts. (2) If, in any proceeding under this code, the absentee is not found to be deceased and any policy of insurance or any annuity or endowment contract owned by the absentee provides for a surrender value, the conservator, acting for the insured, with court approval and a finding of necessity, may demand the payment of surrender value to the estate of the absentee. The receipt of the conservator for such payment shall be a release to the contract issuer of all claims under the contract. (3) Notwithstanding the provisions in any annuity or endowment contract or policy of life or accident insurance or in the charter or bylaws of any mutual or fraternal insurance association hereafter executed or adopted, the provisions of this section shall govern the effect to be given to evidence of absence or of death. (4) When any annuity or endowment contract, any policy of life or accident insurance, or the charter or bylaws of any mutual or fraternal insurance association hereafter executed or adopted contains a provision requiring a beneficiary to bring suit upon a claim of death within a stated period after the death of the insured and the fact of the absence of the insured is relied upon by the beneficiary as evidence of the death, the action may be begun, notwithstanding such provision in the contract, policy, charter, or bylaws, at any time within the statutory period of limitation for actions on contracts in writing dating from the date of death of the absentee, as determined in a formal testacy proceeding under this code. Source: L. 73: R&RE, p. 1540, § 1. C.R.S. 1963: § 153-1-110. Colorado Revised Statutes 2019 Page 150 of 600 Uncertified Printout 15-10-111. Entry into safe deposit box of decedent - definitions. (1) (a) Whenever a decedent at the time of his or her death was a sole or joint lessee of a safe deposit box, the custodian shall, prior to notice that a personal representative or special administrator has been appointed, allow access to the box by: (I) If the decedent was the sole lessee of the box, a person claiming to be a successor of the decedent, or acting on behalf of a successor of the decedent, upon presentation of an affidavit made pursuant to section 15-12-1201 for the purpose of delivering the contents of the box in accordance with said section; or (II) If the decedent was the sole lessee or a joint lessee of the box, a person who is reasonably believed to be an heir at law or devisee of the decedent, a person nominated as a personal representative pursuant to the provisions of section 15-12-203 (1)(a), or the agent or attorney of any such person for the purpose of determining whether the box contains an instrument that appears to be a will of the decedent, deed to a burial plot, or burial instructions. (b) (I) If a person described in subparagraph (I) or (II) of paragraph (a) of this subsection (1) desires access to a safe deposit box but does not possess a key to the box, the custodian shall drill the safe deposit box at the person's expense. (II) In the case of a person described in subparagraph (I) of paragraph (a) of this subsection (1), the custodian shall deliver the contents of the box, other than a purported will, deed to a burial plot, and burial instructions, to the person in accordance with section 15-121201. In order to protect a custodian in carrying out his or her duty under the foregoing sentence to examine such contents solely for the purpose of identifying and withholding specified documents and making delivery of such contents other than the specified documents to such person, a custodian is not deemed to have acquired knowledge, either actual or constructive, pertaining to the value of any of the contents of the box delivered to the person as a consequence of the examination and delivery. (III) In the case of a person described in subparagraph (II) of paragraph (a) of this subsection (1), the custodian shall retain, in a secure location at the person's expense, the contents of the box other than a purported will, deed to a burial plot, and burial instructions. (IV) A custodian shall deliver a purported will as described in subsection (2) of this section. (V) If the safe deposit box contains a deed to a burial plot or burial instructions that are not a part of a purported will, the person or persons authorized to have access to the safe deposit box under the provisions of subsection (1) of this section may remove these instruments, and the custodian shall not prevent the removal. (VI) Expenses incurred by a custodian pursuant to this section shall be considered an estate administration expense. (c) A representative of the custodian shall be present during the entry of a safe deposit box pursuant to this section. (1.3) Nothing in this section affects the rights and responsibilities of a public administrator, as described in sections 15-12-620 and 15-12-621. (1.5) As used in this section, unless the context otherwise requires: (a) "Custodian" means a bank, savings and loan association, credit union, or other institution acting as a lessor of a safe deposit box, as defined in section 11-46-101, C.R.S., or section 11-101-401, C.R.S. Colorado Revised Statutes 2019 Page 151 of 600 Uncertified Printout (b) "Representative of a custodian" means an authorized officer or employee of a custodian. (2) (a) If an instrument purporting to be a will is found in a safe deposit box as the result of an entry pursuant to subsection (1) of this section, the purported will shall be removed by the representative of the custodian. (b) At the request of the person or persons authorized to have access to the safe deposit box under the provisions of subsection (1) of this section, the representative of the custodian shall copy each purported will of the decedent, at the expense of the requesting person, and shall deliver the copy of each purported will to the person, or if directed by the person, to the person's agent or attorney. In copying any purported will, the representative of the custodian shall not remove any staples or other fastening devices or disassemble the purported will in any way. (c) The custodian shall mail the purported will by registered or certified mail or deliver the purported will in person to the clerk of the district or probate court of the county in which the decedent was a resident. If the custodian is unable to determine the county of residence of the decedent, the custodian shall mail the purported will by registered or certified mail or deliver the purported will in person to the office of the clerk of the proper court of the county in which the safe deposit box is located. (d) Repealed. (3) After the appointment of a personal representative or special administrator for the decedent, the personal representative or special administrator shall be permitted to enter the safe deposit box upon the same terms and conditions as the decedent was permitted to enter during his or her lifetime. (4) Nothing in this section affects the right of surviving joint lessees to enter a safe deposit box after the death of a decedent. (5) A custodian shall not be liable to a person for an action taken pursuant to this section or for a failure to act in accordance with the requirements of this section unless the action or failure to act is shown to have resulted from the custodian's bad faith, gross negligence, or intentional misconduct. Source: L. 73: R&RE, p. 1540, § 1. C.R.S. 1963: § 153-1-111. L. 75: (1) amended, p. 588, § 8, effective July 1. L. 77: (1) amended, p. 840, § 1, effective July 1. L. 80: Entire section R&RE, p. 522, § 1, effective July 1. L. 2007: Entire section amended, p. 124, § 1, effective July 1. L. 2009: (1)(b) and (2)(b) amended, (HB 09-1241), ch. 169, p. 760, § 15, effective April 22. L. 2014: (1)(a)(I) amended, (HB 14-1322), ch. 296, p. 1220, § 1, effective August 6. L. 2015: (1)(a), (1)(b), and (4) amended and (2)(d) repealed, (HB 15-1064), ch. 32, p. 76, § 1, effective August 5. Editor's note: The provisions of subsection (1) as amended by House Bill 07-1003, including subsection (1)(e) renumbered to subsection (1.3), and the paragraphs in subsection (2) as amended by House Bill 07-1003 have been renumbered on revision to conform to standard C.R.S. format. 15-10-112. Cost of living adjustment of certain dollar amounts. (1) As used in this section, unless the context otherwise requires: Colorado Revised Statutes 2019 Page 152 of 600 Uncertified Printout (a) "CPI" means the consumer price index (annual average) for all urban consumers (CPI-U): United States city average -- all items, reported by the bureau of labor statistics, United States department of labor or its successor agency or, if the index is discontinued, an equivalent index reported by a federal authority. If no such index is reported, the term means the substitute index chosen by the department of revenue; and (b) "Reference base index" means the CPI for the calendar year 2010. (2) The dollar amounts stated in sections 15-11-102, 15-11-202 (2), 15-11-403, and 1511-405 apply to the estate of a decedent who died during or after 2010, but for the estate of a decedent who died after 2011, these dollar amounts must be increased or decreased if the CPI for the calendar year immediately preceding the year of death exceeds or is less than the reference base index. The amount of any increase or decrease is computed by multiplying each dollar amount by the percentage by which the CPI for the calendar year immediately preceding the year of death exceeds or is less than the reference base index. If the amount of the increase or decrease produced by the computation is not a multiple of one thousand dollars, then the amount of the increase or decrease is rounded down if it is an increase, or rounded up if it is a decrease, to the next multiple of one thousand dollars, but for the purpose of section 15-11-405, the periodic installment amount is the lump-sum amount divided by twelve. If the CPI for 2010 is changed by the bureau of labor statistics, the reference base index must be revised using the rebasing factor reported by the bureau of labor statistics, or other comparable data if a rebasing factor is not reported. (3) Before February 1, 2012, and before February 1 of each succeeding year, the department of revenue shall publish a cumulative list, beginning with the dollar amounts effective for the estate of a decedent who died in 2012 of each dollar amount as increased or decreased under this section. Source: L. 2009: Entire section added, (HB 09-1287), ch. 310, p. 1670, § 1, effective July 1, 2010. L. 2010: (1)(b), (2), and (3) amended, (SB 10-199), ch. 374, p. 1747, § 2, effective July 1. L. 2014: (2) amended, (HB 14-1322), ch. 296, p. 1240, § 12, effective August 6. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. PART 2 DEFINITIONS 15-10-201. General definitions. Subject to additional definitions contained in this article 10 and the subsequent articles that are applicable to specific articles, parts, or sections, and unless the context otherwise requires, in this code: (1) "Agent" means an attorney in fact under a durable or nondurable power of attorney, an individual authorized to make decisions concerning another's health care, and an individual authorized to make decisions for another under the "Colorado Patient Autonomy Act". (2) "Application" means a written request to the registrar for an order of informal probate or appointment under part 3 of article 12 of this title. Colorado Revised Statutes 2019 Page 153 of 600 Uncertified Printout (3) "Augmented estate" means the estate described in sections 15-11-203, 15-11-204, 15-11-205, 15-11-206, 15-11-207, and 15-11-208. (4) "Authenticated" means certified, when used in reference to copies of official documents, and only certification by the official having custody is required. (5) "Beneficiary", as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer; as it relates to a charitable trust, includes any person entitled to enforce the trust; as it relates to a "beneficiary of a beneficiary designation", includes a beneficiary of an insurance or annuity policy, of an account with payment on death (POD) designation, of a security registered in beneficiary form (TOD), or of a pension, profit sharing, retirement, or similar benefit plan, or other nonprobate transfer at death; and, as it relates to a "beneficiary designated in a governing instrument", includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee, or taker in default of a power of appointment, and a person in whose favor a power of attorney or a power held in any individual, fiduciary, or representative capacity is exercised. (6) "Beneficiary designation" means a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in the beneficiary form (TOD), or of a pension, profit sharing, retirement, or similar benefit plan, or other nonprobate transfer at death. (6.5) "Business trust" includes, but is not limited to, Massachusetts business trusts created for business or investment purposes; Delaware statutory trusts; Illinois land trusts; mutual fund trusts; common trust funds; voting trusts; liquidation trusts; real estate investment trusts; environmental remediation trusts; trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, compensation, annuities, profits, pensions, or employee benefits of any kind; and other trusts with purposes that are the same or similar to any of the trusts enumerated in this subsection (6.5), regardless of whether such other trusts are created under statutory or common law, and regardless of whether the beneficial interests in such other trusts are evidenced by certificates. (7) "Child" includes an individual entitled to take as a child under this code by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild, or any more remote descendant. (8) "Claims", in respect to the estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, or taxes due the state of Colorado, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate. (9) "Conservator" means a person who is appointed by a court to manage the estate of a protected person. (10) "Court" means the court or division thereof having jurisdiction in matters relating to the affairs of decedents and protected persons. This court is the district court, except in the city and county of Denver where it is the probate court. Colorado Revised Statutes 2019 Page 154 of 600 Uncertified Printout (11) "Descendant" means all of the individual's lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this code. (12) "Devise", when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will. (13) "Devisee" means a person designated in a will to receive a devise. For the purposes of article 12 of this title, in the case of a devise to an existing trust or trustee, or to a trustee in trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees. (14) "Disability" means cause for a protective order as described in section 15-14-401. (15) "Distributee" means any person who has received property of a decedent from his or her personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his or her hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purposes of this provision, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets. (16) "Divorce" includes a dissolution of marriage, and "annulment" includes a declaration of invalidity, as such terms are used in the "Uniform Dissolution of Marriage Act", article 10 of title 14, C.R.S. (16.5) "Domiciliary foreign personal representative" means a personal representative appointed by another jurisdiction in which the decedent was domiciled at the time of the decedent's death. (16.7) "Donee", as used in the context of powers of appointment, has the same meaning as "powerholder" as set forth in section 15-2.5-102 (13). (17) "Estate" means the property of the decedent, trust, or other person whose affairs are subject to this code as originally constituted and as it exists from time to time during administration. (18) "Exempt property" means that property of a decedent's estate which is described in section 15-11-403. (19) "Fiduciary" includes a personal representative, guardian, conservator, and trustee. (20) "Foreign personal representative" means a personal representative appointed by another jurisdiction. (21) "Formal proceedings" means proceedings conducted before a judge with notice to interested persons. (22) "Governing instrument" means a deed, will, trust, insurance or annuity policy, multiple-party account, security registered in beneficiary form (TOD), pension, profit sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or power of attorney, or a donative, appointive, or nominative instrument of any other type. (23) "Guardian" means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem. (24) "Heirs", except as controlled by section 15-11-711, means persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent. (25) "Incapacitated person" means an individual described in section 15-14-102 (5). Colorado Revised Statutes 2019 Page 155 of 600 Uncertified Printout (26) "Informal proceedings" means those conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will, appointment of a personal representative, or determination of a guardian under sections 15-14-202 and 15-14-301. (27) "Interested person" includes heirs, devisees, children, spouses, creditors, beneficiaries, trust directors, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person, which may be affected by the proceeding. It also includes persons having priority for an appointment as a personal representative and other fiduciaries representing the interested person. The meaning as it relates to particular persons may vary from time to time and is determined according to the particular purposes of, and matter involved in, any proceeding. (28) "Issue" of a person means descendant as defined in subsection (11) of this section. (29) "Joint tenants with right of survivorship" and "community property with the right of survivorship" for the purposes of this code only includes co-owners of property held under circumstances that entitle one or more to the whole of the property on the death of the other or others, but excludes forms of co-ownership registration in which the underlying ownership of each party is in proportion to that party's contribution. (30) "Lease" includes an oil, gas, or other mineral lease. (31) "Letters" includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship. (32) "Minor" means a person who is under eighteen years of age. (33) "Mortgage" means any conveyance, agreement, or arrangement in which the property is used as security. (34) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of his or her death. (35) "Organization" means a corporation, business trust, estate, trust, partnership, joint venture, limited liability company, association, government or governmental subdivision or agency, or any other legal or commercial entity. (36) "Parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent. (37) "Payor" means a trustee, insurer, business entity, employer, government, governmental agency or subdivision, or any other person authorized or obligated by law or a governing instrument to make payments. (38) "Person" means an individual or an organization. (39) "Personal representative" includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator. (40) "Petition" means a written request to the court for an order after notice. (41) "Proceeding" includes action at law and suit in equity. (42) "Property" means both real and personal property or any interest therein and anything that may be the subject of ownership. (43) "Protected person" has the same meaning as set forth in section 15-14-102 (11). (44) "Protective proceeding" has the same meaning as used in section 15-14-401. Colorado Revised Statutes 2019 Page 156 of 600 Uncertified Printout (44.5) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (45) "Registrar" refers to the official of the court designated to perform the functions of registrar as provided in section 15-10-307. (46) "Security" includes any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease; collateral trust certificate; transferable share; voting trust certificate; or, in general, any interest or instrument commonly known as security; any certificate of interest or participation; any temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the items enumerated in this subsection (46). (47) "Settlement", in reference to a decedent's estate, means the full process of administration, distribution, and closing. (47.5) "Sign" means, with present intent to authenticate or adopt a record other than a will: (a) To execute or adopt a tangible symbol; or (b) To attach to or logically associate with the record an electronic symbol, sound, or process. (48) "Special administrator" means a personal representative as described by sections 15-12-614 to 15-12-618. (49) "State" means any state of the United States, the District of Columbia, the commonwealth of Puerto Rico, and any territory or insular possession subject to the jurisdiction of the United States. (50) "Successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative. (51) "Successors" means persons other than creditors, who are entitled to property of a decedent under his or her will or this code. (52) "Supervised administration" means the proceedings described in part 5 of article 12 of this title. (53) "Survive" means that an individual has neither predeceased an event, including the death of another individual, nor is deemed to have predeceased an event under section 15-11104, 15-11-702, or 15-11-712. The term includes its derivatives, such as "survives", "survived", "survivor", and "surviving". (54) "Testacy proceeding" means a proceeding to establish a will or determine intestacy. (55) "Testator" includes an individual of either sex. (56) (a) Except as provided in paragraph (b) of this subsection (56): (I) "Trust" includes an express trust, private or charitable, with additions thereto, wherever and however created and any amendments to such trusts. (II) "Trust" also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. (b) (I) "Trust" excludes constructive trusts unless a court, in determining such a trust, provides that the trust is to be administered as an express trust. (II) "Trust" also excludes resulting trusts; conservatorships; personal representatives; accounts as defined in section 15-15-201 (1); custodial arrangements pursuant to the "Colorado Colorado Revised Statutes 2019 Page 157 of 600 Uncertified Printout Uniform Transfers to Minors Act", article 50 of title 11, C.R.S.; security arrangements; business trusts, as defined in subsection (6.5) of this section; and any arrangement under which a person is nominee or escrowee for another. (57) "Trustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by court. (58) "Ward" means an individual described in section 15-14-102 (15). (59) "Will" includes any codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession. "Will" does not include a designated beneficiary agreement that is executed pursuant to article 22 of this title. Source: L. 73: R&RE, p. 1541, § 1. C.R.S. 1963: § 153-1-201. L. 74: (27) amended, p. 422, § 74, effective April 11. L. 75: (1) amended, p. 589, § 9, effective July 1. L. 84: (48) amended, p. 394, § 6, effective July 1. L. 90: (48) amended, p. 921, § 5, effective July 1. L. 94: Entire section R&RE, p. 970, § 2, effective July 1, 1995. L. 95: (11) amended, p. 362, § 16, effective July 1. L. 2000: (25), (26), (43), (44), and (58) amended, p. 1833, § 8, effective January 1, 2001. L. 2006: (16.5) added, p. 391, § 24, effective July 1. L. 2009: (44.5) and (47.5) added, (HB 09-1287), ch. 310, p. 1671, § 2, effective July 1, 2010. L. 2010: (59) amended, (SB 10199), ch. 374, p. 1748, § 3, effective July 1. L. 2013: IP and (56) amended and (6.5) added, (SB 13-077), ch. 190, p. 778, § 13, effective August 7. L. 2014: (3) amended, (HB 14-1322), ch. 296, p. 1240, § 14, effective August 6; (16.7) added, (HB 14-1353), ch. 209, p. 782, § 4, effective July 1, 2015. L. 2019: IP and (27) amended, (SB 19-105), ch. 51, p. 175, § 9, effective August 2. Editor's note: This section was repealed and reenacted in 1994, resulting in the relocation of provisions. For a detailed comparison of this section for 1994, see the comparative tables located in the back of the index. Cross references: For age of competence, see § 13-22-101; for the "Colorado Uniform Transfers to Minors Act", see article 50 of title 11. For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. PART 3 SCOPE, JURISDICTION, AND COURTS 15-10-301. Territorial application. (1) Except as otherwise provided in this code, this code applies to: (a) The affairs and estates of decedents, missing persons, and persons to be protected, domiciled in this state; (b) The property of nonresidents located in this state or property coming into the control of a fiduciary who is subject to the laws of this state; (c) Incapacitated persons and minors in this state; (d) Survivorship and related accounts in this state; Colorado Revised Statutes 2019 Page 158 of 600 Uncertified Printout (e) Trusts subject to administration in this state, to the extent such application is not inconsistent with the "Colorado Uniform Trust Code", article 5 of this title 15; and (f) Declaration instruments created pursuant to article 19 of this title. Source: L. 73: R&RE, p. 1545, § 1. C.R.S. 1963: § 153-1-301. L. 2003: (1)(f) added, p. 1355, § 2, effective August 6. L. 2018: (1)(e) amended, (SB 18-180), ch. 169, p. 1193, § 8, effective January 1, 2019. 15-10-302. Subject matter jurisdiction. (1) The court has jurisdiction over all subject matter vested by article VI of the state constitution and by articles 1 to 10 of title 13, C.R.S. (2) The court has full power to make orders, judgments, and decrees and take all other action necessary and proper to administer justice in the matters which come before it. Source: L. 73: R&RE, p. 1545, § 1. C.R.S. 1963: § 153-1-302. 15-10-303. Venue - multiple proceedings - transfer. (1) Where a proceeding under this code could be maintained in more than one place in this state, the court in which the proceeding is first commenced has the exclusive right to proceed. (2) If proceedings concerning the same estate, protected person, ward, or trust are commenced in more than one court of this state, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court. (3) If a court finds that in the interest of justice a proceeding or a file should be located in another court of this state, the court making the finding may transfer the proceeding or file to the other court. Source: L. 73: R&RE, p. 1545, § 1. C.R.S. 1963: § 153-1-303. 15-10-304. Practice in court. Unless specifically provided to the contrary in this code or unless inconsistent with its provisions, the Colorado rules of civil procedure including the rules concerning vacation of orders and appellate review govern formal proceedings under this code. Source: L. 73: R&RE, p. 1546, § 1. C.R.S. 1963: § 153-1-304. 15-10-305. Records and certified copies. (1) The clerk of each court shall keep for each decedent, ward, protected person, or trust under the court's jurisdiction a record of any document which may be filed with the court under this code, including petitions and applications, demands for notices or bonds, trust registrations, and of any orders or responses relating thereto by the registrar or court, and establish and maintain a system for indexing, filing, or recording which is sufficient to enable users of the records to obtain adequate information. Upon payment of the fees required by law the clerk must issue certified copies of any probated wills, letters issued to personal representatives, or any other record or paper filed or recorded. Certificates relating to probated wills must indicate whether the decedent was domiciled in this Colorado Revised Statutes 2019 Page 159 of 600 Uncertified Printout state and whether the probate was formal or informal. Certificates relating to letters must show the date of appointment. (2) All instruments purporting to be the original wills, upon presentation for probate thereof, shall be recorded by the clerk of the court, in a well-bound book, to be provided by him for that purpose, or photographed, microphotographed, or reproduced on film as a permanent record, and shall remain and be preserved in the office of the clerk of the court. Upon admission of such will to probate, such record shall be sufficient, without again recording the same in the records of the clerk of the court. Source: L. 73: R&RE, p. 1546, § 1. C.R.S. 1963: § 153-1-305. Cross references: For the recording of wills and decrees affecting land, see § 38-30-153. 15-10-306. Jury trial. (1) If duly demanded, a party is entitled to trial by jury in a formal testacy proceeding and any proceeding in which any controverted question of fact arises as to which any party has a constitutional right to trial by jury. (2) If there is no right to trial by jury under subsection (1) of this section or the right is waived, the court in its discretion may call a jury to decide any issue of fact, in which case the verdict is advisory only. Source: L. 73: R&RE, p. 1546, § 1. C.R.S. 1963: § 153-1-306. 15-10-307. Registrar - powers. The acts and orders which this code specifies as performable by the registrar may be performed either by a judge of the court or by a person, including the clerk, designated by the court by a written order filed and recorded in the office of the clerk of the court. Source: L. 73: R&RE, p. 1546, § 1. C.R.S. 1963: § 153-1-307. 15-10-308. Appeals. Appellate review, including the right to appellate review, interlocutory appeal, provisions as to time, manner, notice, appeal bond, stays, scope of review, record on appeal, briefs, arguments, and power of the appellate court, is governed by the Colorado appellate rules. Source: L. 73: R&RE, p. 1546, § 1. C.R.S. 1963: § 153-1-308. 15-10-309. (Reserved) 15-10-310. Oath or affirmation on filed document. (1) Except as otherwise specifically provided in this code or by rule, every document filed with the court under this code, including applications, petitions, and demands for notice, shall be deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed, and penalties for perjury may follow deliberate falsification therein. Colorado Revised Statutes 2019 Page 160 of 600 Uncertified Printout (2) The court shall have jurisdiction over any person, resident or nonresident, who files any document with the court under this code and over any person, resident or nonresident, who executes any such document and who knows or has reason to know that the document will be filed with the court under this code in any proceeding for relief from fraud relating to such a document that may be initiated against such person. Service of process shall be as provided in the Colorado rules of civil procedure. Source: L. 73: R&RE, p. 1546, § 1. C.R.S. 1963: § 153-1-310. L. 77: Entire section amended, p. 831, § 6, effective July 10. Cross references: For service of process, see Rule 4, C.R.C.P. PART 4 NOTICE, PARTIES, AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS 15-10-401. Notice - method and time of giving. (1) If notice of a hearing on any petition is required, and except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing on any petition to be given to any interested person or to the interested person's attorney of record or the interested person's designee. Notice shall be given: (a) By mailing a copy thereof at least fourteen days before the time set for the hearing by certified, registered, or ordinary first-class mail addressed to the person being notified at the post-office address given in any demand for notice, or at the person's office or place of residence, if known; or (b) By delivering a copy thereof to the person being notified personally at least fourteen days before the time set for the hearing; or (c) If the address or identity of any person is not known and cannot be ascertained with reasonable diligence, by publishing once a week for three consecutive weeks, a copy thereof in a newspaper having general circulation published in the county where the hearing is to be held, the last publication of which is to be at least fourteen days before the time set for the hearing. In case there is no newspaper of general circulation published in the county of appointment, said publication shall be made in such a newspaper in an adjoining county. A motion for court permission to publish the notice of any hearing shall not be required unless otherwise directed by the court. (2) The court for good cause shown may provide for a different method or time of giving notice for any hearing. (3) Proof of the giving of notice shall be made on or before the hearing and filed in the proceeding. If notice is given by publication, at the time the party who issued the notice by publication files proof of publication, that party shall also file an affidavit verified by the oath of such party or by someone on his or her behalf stating the facts that warranted the use of publication for service of the notice of the hearing and stating the efforts, if any, that have been made to obtain personal service or service by mail. The affidavit shall also state the address, or Colorado Revised Statutes 2019 Page 161 of 600 Uncertified Printout last known address, of each person served by publication or shall state that the person's address or identity is unknown and cannot be ascertained with reasonable diligence. (4) "Publication once a week for three consecutive weeks" means publication once during each week of three consecutive calendar weeks with at least twelve days elapsing between the first and last publications. Source: L. 73: R&RE, p. 1547, § 1. C.R.S. 1963: § 153-1-401. L. 75: (4) amended, p. 589, § 10, effective July 1. L. 77: (1)(a) amended, p. 831, § 7, effective July 1. L. 2002: Entire section amended, p. 651, § 4, effective July 1. L. 2012: (1) amended, (SB 12-175), ch. 208, p. 836, § 40, effective July 1. 15-10-402. Notice - waiver. A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice by a writing signed by him or his attorney and filed in the proceeding. Source: L. 73: R&RE, p. 1547, § 1. C.R.S. 1963: § 153-1-402. 15-10-403. Pleadings - when parties bound by others - notice. (1) In formal proceedings involving trusts or estates of decedents, minors, protected persons, or incapacitated persons, and in judicially supervised settlements, the provisions of this section are applicable. (2) Interests to be affected shall be described in pleadings which give reasonable information to owners by name or class, by reference to the instrument creating the interests, or in other appropriate manner. (3) Persons are bound by orders binding others in the following cases: (a) Orders binding the sole holder or all coholders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, bind other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power. (b) To the extent there is no conflict of interest between them or among persons represented, orders binding a conservator bind the person whose estate he controls; orders binding a guardian bind the ward if no conservator of his estate has been appointed; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust, to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties; and orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate in actions or proceedings by or against the estate. (c) If there is no conflict of interest and no conservator or guardian has been appointed, a parent may represent his minor child, and where there is such representation orders binding the parent bind the minor child. (d) An unborn, unascertained, minor, or incapacitated person who is not otherwise represented is bound by an order to the extent his or her interest is adequately represented by another party having a substantially identical interest in the proceeding. (4) Notice is required as follows: Colorado Revised Statutes 2019 Page 162 of 600 Uncertified Printout (a) Notice as prescribed by section 15-10-401 shall be given to each interested person or to one who can bind an interested person as described in subsection (3) of this section. Notice may be given both to a person and to another who may bind him. (b) Notice is given to unborn, unascertained, minor, or incapacitated persons who are not represented under subsection (3) of this section by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn, unascertained, minor, or incapacitated persons. (5) At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, protected, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that a need for such representation appears. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding. Source: L. 73: R&RE, p. 1547, § 1. C.R.S. 1963: § 153-1-403. L. 2000: (3)(d) and (4)(b) amended, p. 1172, § 2, effective May 26. L. 2009: (5) amended, (HB 09-1241), ch. 169, p. 761, § 16, effective April 22. PART 5 FIDUCIARY OVERSIGHT, REMOVAL, SANCTIONS, AND CONTEMPT 15-10-501. Court powers - definitions - application. (1) Court powers. A court, incident to a court proceeding, possesses and may employ all of the powers and authority expressed in the provisions of this part 5 to maintain the degree of supervision necessary to ensure the timely and proper administration of estates by fiduciaries over whom the court has obtained jurisdiction. Nothing in this part 5 shall be interpreted to limit a court's powers under Colorado law. The powers of a court as described in this part 5 do not confer jurisdiction over the fiduciaries of nonsupervised trusts, private trusts, agencies created by powers of attorney, and custodial accounts created under the "Colorado Uniform Transfers to Minors Act", article 50 of title 11, C.R.S., except as provided in paragraph (c) of subsection (2) of this section. (2) Definitions. As used in this part 5, unless the context otherwise requires: (a) "Court" means a district court of Colorado and the probate court of the city and county of Denver. (b) "Estate" means the estate of a decedent; a guardianship; a protective proceeding; a trust, including an implied trust; an agency created by a power of attorney; or a custodial account created under the "Colorado Uniform Transfers to Minors Act", article 50 of title 11, C.R.S. (c) "Jurisdiction" means, and is restricted to, the personal jurisdiction obtained by a court over a fiduciary as a result of the filing of a proceeding concerning the estate. The filing of a trust registration statement, by itself, shall not constitute a proceeding for the purposes of this part 5. (3) Application. The provisions of this part 5 apply to any fiduciary over whom a court has obtained jurisdiction, including but not limited to a personal representative, special administrator, guardian, conservator, special conservator, trustee, trust director, agent under a Colorado Revised Statutes 2019 Page 163 of 600 Uncertified Printout power of attorney, and custodian, including a custodian of assets or accounts created under the "Colorado Uniform Transfers to Minors Act", article 50 of title 11. Source: L. 2008: Entire part added, p. 477, § 1, effective July 1. L. 2019: (3) amended, (SB 19-105), ch. 51, p. 175, § 10, effective August 2. 15-10-502. Initial investigation. (1) If, during the administration of an estate, a court desires to be informed about the current status of the administration, then the court, on its own motion or the request of an interested person, and without the need to state any reason for its actions, may: (a) Send a letter to the fiduciary of the estate directing the fiduciary to file with the court one or more of the following documents on or before a date to be determined by the court: (I) A status report; (II) An inventory of the current assets of the estate; (III) An up-to-date interim accounting; or (IV) A financial report concerning the estate; (b) Order the fiduciary to file or appear before the court to submit one or more of the documents described in paragraph (a) of this subsection (1) on or before a date to be determined by the court. (2) When a court has directed a fiduciary to file or appear before the court to submit one or more of the documents described in paragraph (a) of this subsection (1), the fiduciary may request that the documents be placed under security pursuant to rule 20 of the Colorado rules of probate procedure. Source: L. 2008: Entire part added, p. 478, § 1, effective July 1. 15-10-503. Power of a court to address the conduct of a fiduciary - emergencies nonemergencies. (1) Emergency situations - court action without the requirement of prior notice or hearing. If it appears to a court that an emergency exists because a fiduciary's actions or omissions pose an imminent risk of substantial harm to a ward's or protected person's health, safety, or welfare or to the financial interests of an estate, the court may, on its own motion or upon the request of an interested person, without a hearing and without following any of the procedures authorized by section 15-10-502, order the immediate restraint, restriction, or suspension of the powers of the fiduciary; direct the fiduciary to appear before the court; or take such further action as the court deems appropriate to protect the ward or protected person or the assets of the estate. If a court restrains, restricts, or suspends the powers of a fiduciary, the court shall set a hearing and direct that notice be given pursuant to section 15-10-505. The clerk of the court shall immediately note the restraint, restriction, or suspension on the fiduciary's letters, if any. Any action for the removal, surcharge, or sanction of a fiduciary shall be governed by this section. (2) Nonemergency situations - court action after notice and hearing. Upon petition by a person who appears to have an interest in an estate, or upon the court's own motion, and after a hearing for which notice to the fiduciary has been provided pursuant to section 15-10505, a court may order any one or more of the following: Colorado Revised Statutes 2019 Page 164 of 600 Uncertified Printout (a) Supervised administration of a decedent's estate, as described in part 5 of article 12 of this title. The degree and extent of the supervision shall be endorsed upon the fiduciary's letters, if any. (b) A temporary restraint on the fiduciary's performance of specified acts of administration, disbursement, or distribution; a temporary restraint on the fiduciary's exercise of any powers or discharge of any duties of the office of the fiduciary; or any other order to secure proper performance of the fiduciary's duty if it appears to the court that, in the absence of such an order, the fiduciary may take some action that would unreasonably jeopardize the interest of the petitioner or of some other interested person. The court may make persons with whom the fiduciary may transact business parties to any order issued pursuant to this paragraph (b). The restraint shall be endorsed upon the fiduciary's letters, if any. (c) Additional restrictions on the powers of the fiduciary. The restrictions shall be endorsed upon the fiduciary's letters, if any. (d) The suspension of the fiduciary if the court determines that the fiduciary has violated his, her, or its fiduciary duties. If a court orders the suspension of a fiduciary pursuant to this paragraph (d), the court shall direct that the suspension be endorsed upon the fiduciary's letters, if any. (e) The appointment of a temporary or permanent successor fiduciary; (f) A review of the fiduciary's conduct. If a court orders a review of the fiduciary's conduct, the court shall specify the scope and duration of the review in the court's order. (g) A surcharge or sanction of the fiduciary pursuant to section 15-10-504; (h) The removal of the fiduciary; or (i) Such further relief as the court deems appropriate to protect the ward or protected person or the assets of the estate. (3) Removal of a fiduciary - procedures. A court may remove a fiduciary for cause at any time, and the following provisions apply: (a) If a court orders the removal of a fiduciary, the court shall direct by order the disposition of the assets remaining in the name of, or under the control of, the fiduciary being removed. (b) If a court orders the removal of a fiduciary, the court shall direct that the fiduciary's letters, if any, be revoked and that such revocation be endorsed upon the fiduciary's letters, if any. (c) Cause for removal of a fiduciary exists when: (I) Removal would be in the best interests of the estate; (II) It is shown that the fiduciary or the person seeking the fiduciary's appointment intentionally misrepresented material facts in the proceedings leading to the fiduciary's appointment; or (III) The fiduciary has disregarded an order of the court, has become incapable of discharging the duties of the office, or has mismanaged the estate or failed to perform any duty pertaining to the office. (4) Petition for removal - temporary restraints on fiduciary powers. After a fiduciary receives notice of the filing of a petition for his, her, or its removal, the fiduciary shall not act except to account, to correct maladministration, or to preserve the estate. Colorado Revised Statutes 2019 Page 165 of 600 Uncertified Printout Source: L. 2008: Entire part added, p. 478, § 1, effective July 1. L. 2016: (1), (2)(e), (2)(f), (2)(g), and (2)(h) amended and (3) and (4) added, (SB 16-131), ch. 286, p. 1163, § 1, effective August 10. 15-10-504. Surcharge - contempt - sanctions against fiduciaries. (1) Notice. Except as provided in subsection (3) of this section, notice to a fiduciary concerning any matters governed by the provisions of this section shall be provided pursuant to section 15-10-505. (2) Surcharge. (a) If a court, after a hearing, determines that a breach of fiduciary duty has occurred or an exercise of power by a fiduciary has been improper, after applying the standards of care applicable to each fiduciary in a proceeding, the court may surcharge the fiduciary for any damage or loss to the estate, beneficiaries, or interested persons. Such damages may include compensatory damages, interest, and attorney fees and costs. When allocating any such damages among fiduciaries, the court shall consider the standards of care applicable to the fiduciaries in the proceeding. (b) In awarding attorney fees and costs pursuant to this section, a court may consider the provisions of part 6 of this article 10 and shall consider the standards of care applicable to the fiduciaries in the proceeding. (3) Contempt proceedings against fiduciary. Nothing in this part 5 shall be interpreted to limit or restrict a court's authority to proceed against a fiduciary for direct contempt as provided in rule 107 of the Colorado rules of civil procedure. In addition, if a fiduciary fails to comply with an order of a court issued pursuant to this part 5, the court may proceed against the fiduciary for indirect contempt as provided in rule 107 of the Colorado rules of civil procedure. A court may initiate indirect contempt proceedings on its own motion or upon the filing of a motion supported by affidavit as described in rule 107 of the Colorado rules of civil procedure. (4) Sanctions. If a court determines that a breach of fiduciary duty has occurred or an exercise of power by a fiduciary has been improper, the court, after a hearing, may order such other sanctions as the court deems appropriate, but the court shall take into account the standards of care applicable to each fiduciary in the proceeding. (5) Remedies. If remedies are sought against a directed trustee for complying with the direction of a trust director under the "Colorado Uniform Directed Trust Act", part 8 of article 16 of this title 15, or comparable arrangement created under the terms of a trust, the court shall take into account the standards of care applicable to each fiduciary in the proceeding when apportioning damages, fees, costs, or fault among the fiduciaries. Source: L. 2008: Entire part added, p. 480, § 1, effective July 1. L. 2011: (2)(b) amended, (SB 11-083), ch. 101, p. 302, § 2, effective August 10. L. 2019: (2) and (4) amended and (5) added, (SB 19-105), ch. 51, p. 175, § 11, effective August 2. 15-10-505. Notice to fiduciary - current address on file. (1) In all actions undertaken pursuant to this part 5, the following provisions shall govern notice to fiduciaries: (a) In emergency situations. If it appears to a court that an emergency exists because there is an imminent risk of substantial harm to a ward's or protected person's health, safety, or welfare or to the financial interests of an estate, the court may take appropriate action and issue an order with or without prior notice to a fiduciary as the court determines appropriate based upon the nature of the emergency. If a fiduciary of an estate is not present when an emergency Colorado Revised Statutes 2019 Page 166 of 600 Uncertified Printout order is entered concerning the administration of the estate, the court shall attempt to notify the fiduciary of the court's action and mail a copy of the court's order to the fiduciary at the fiduciary's last address of record on file with the court. Notice of the court's order shall also be served, pursuant to section 15-10-401, upon all interested persons or as the court directs. Notice of all hearings set under section 15-10-503 (1) shall be given pursuant to section 15-10-401. (b) In nonemergency situations. In nonemergency situations, notice to a fiduciary shall be governed by section 15-10-401. (c) Contempt. For a hearing to determine possible contempt of a fiduciary, the court shall provide notice to the fiduciary as required by rule 107 of the Colorado rules of civil procedure. (2) Fiduciary's responsibility to keep current address in court file. Every fiduciary appointed by a court is required to keep his, her, or its current address and telephone number on file with the court. The fiduciary shall promptly notify the court of any change in the fiduciary's address or telephone number. Source: L. 2008: Entire part added, p. 481, § 1, effective July 1. PART 6 COMPENSATION AND COST RECOVERY 15-10-601. Definitions. As used in this part 6, unless the context otherwise requires: (1) "Estate" means the property of the decedent, trust, or other person whose affairs are subject to this code or any code included as part of this title 15 as the estate is originally constituted and as the estate exists from time to time during administration. "Estate" includes custodial property as described in the "Colorado Uniform Transfers to Minors Act", article 50 of title 11; custodial trust property as described in the "Colorado Uniform Custodial Trust Act", article 1.5 of this title 15; and the property of a principal that is subject to a power of attorney. (2) "Fiduciary" means: (a) A personal representative, guardian, conservator, trust director, or trustee; (b) A custodian as described in the "Colorado Uniform Transfers to Minors Act", article 50 of title 11, C.R.S.; (c) A custodial trustee as described in the "Colorado Uniform Custodial Trust Act", article 1.5 of this title; (d) An agent as defined in sections 15-10-201 (1), 15-14-602 (3), and 15-14-702 (1); and (e) A public administrator as described in section 15-12-619. (3) (a) "Governing instrument" means a will or a trust or a donative, appointive, or nominative instrument of any other type, including but not limited to: (I) An instrument that creates a custodial transfer as described in the "Colorado Uniform Transfers to Minors Act", article 50 of title 11, C.R.S.; (II) A custodial trust as described in the "Colorado Uniform Custodial Trust Act", article 1.5 of this title; (III) A medical durable power of attorney as described in section 15-14-506; (IV) An agency instrument as defined in section 15-14-602 (2); (V) A power of attorney as defined in section 15-14-702 (7); Colorado Revised Statutes 2019 Page 167 of 600 Uncertified Printout (VI) A court order appointing a guardian as described in parts 2 and 3 of article 14 of this title; and (VII) A court order appointing a conservator as described in part 4 of article 14 of this title. (b) "Governing instrument" does not include a deed; an insurance or annuity policy; a multiple-party account; a security registered in beneficiary form; a pension; a profit-sharing, retirement, or similar benefit plan; or an individual retirement account. Source: L. 2011: Entire part added, (SB 11-083), ch. 101, p. 295, § 1, effective August 10. L. 2018: (1) amended, (SB 18-180), ch. 169, p. 1193, § 9, effective January 1, 2019. L. 2019: (2)(a) amended, (SB 19-105), ch. 51, p. 176, § 12, effective August 2. 15-10-602. Recovery of reasonable compensation and costs. (1) A fiduciary and his or her lawyer are entitled to reasonable compensation for services rendered on behalf of an estate. (2) A lawyer hired by a respondent, ward, or protected person is entitled to reasonable compensation and costs incurred for the legal representation the lawyer provides for the respondent, ward, or protected person. (3) A third party who performs services at the request of a court is entitled to reasonable compensation. (4) A person's entitlement to compensation or costs shall not limit or remove a court's inherent authority, discretion, and responsibility to determine the reasonableness of compensation and costs when appropriate. (5) Except as limited or otherwise restricted by a court order, compensation and costs that may be recovered pursuant to this section may be paid directly or reimbursed without a court order. After a fiduciary receives notice of proceedings for his, her, or its removal, the fiduciary shall not pay compensation or attorney fees and costs from the estate without an order of the court. A court shall order a person who receives excessive compensation or payment for inappropriate costs to make appropriate refunds. (6) Except as provided in sections 15-10-605 (2), (3), and (4); 15-14-318 (4); and 15-14431 (5), if any fiduciary or person with priority for appointment as personal representative, conservator, guardian, agent, custodian, or trustee defends or prosecutes a proceeding in good faith, whether successful or not, the fiduciary or person is entitled to receive from the estate reimbursement for reasonable costs and disbursements, including but not limited to reasonable attorney fees. (7) (a) Except as otherwise provided in part 5 of this article or in this part 6, a nonfiduciary or his or her lawyer is not entitled to receive compensation from an estate. (b) If a lawyer or another person not appointed by the court provides services that result in an order beneficial to the estate, respondent, ward, or protected person, the lawyer or other person not appointed by the court may receive costs and reasonable compensation from the estate as provided below: (I) The lawyer or other person shall file a request for compensation for services or costs alleged to have resulted in the order within thirty-five days after the entry of the order or within a greater or lesser time as the court may direct. Any objection thereto must be filed within twentyColorado Revised Statutes 2019 Page 168 of 600 Uncertified Printout one days after the filing of the request for compensation or costs. Any reply to the objection must be filed within seven days after the filing of the objection. (II) After a request for compensation or costs or an objection to such a request, if any, has been filed, the court shall determine, without a hearing, the benefit, if any, that the estate received from the services provided. (III) If the court determines that a compensable benefit resulted from the services, then the person requesting compensation or costs shall submit to the court only those fees or costs purportedly incurred in providing the beneficial services. If no objection to those fees and costs is filed, the court shall determine the amount of compensation or costs to be awarded for the benefit, without a hearing. (IV) An interested person disputing the reasonableness of the amount of compensation or costs requested for the beneficial services may file an objection. If an objection is filed, the proceedings to resolve the dispute shall be governed by section 15-10-604. (c) In determining a reasonable amount of compensation or costs, the court may take into account, in addition to the factors set forth in section 15-10-603 (3): (I) The value of a benefit to the estate, respondent, ward, or protected person; (II) The number of parties involved in addressing the issue; (III) The efforts made by the lawyer or person not appointed by the court to reduce and minimize issues; and (IV) Any actions by the lawyer or person not appointed by the court that unnecessarily expanded issues or delayed or hindered the efficient administration of the estate. (d) For the purposes of this subsection (7), services rendered by a lawyer or a person not appointed by a court that confer a benefit to an estate, respondent, ward, or protected person are those significant, demonstrable, and generally noncumulative services that assist the court in resolving material issues in the administration of an estate. By way of example and not limitation, such benefits may result in significantly increasing or preventing a significant decrease in the size of the estate, preventing or exposing maladministration or a material breach of fiduciary duty, or clarifying and upholding a decedent's, settlor's, principal's, respondent's, ward's, or protected person's intent with respect to a material issue in dispute. (8) A fiduciary who is a member of a law firm may use the services of the law firm and charge for the reasonable value of the services of the members and staff of the firm that assist the fiduciary in performing his or her duties. (9) Every application or petition for appointment of a fiduciary filed under this code, including without limitation those required under sections 15-12-301, 15-12-402, 15-12-614, 1512-621, 15-12-622, 15-14-202, 15-14-204, 15-14-304, and 15-14-403, shall include a statement by the applicant or petitioner disclosing the basis upon which any compensation is to be charged to the estate by the fiduciary and his or her or its counsel or shall state that the basis has not yet been determined. The disclosure statement shall specifically describe, as is applicable, the hourly rates to be charged, any amounts to be charged pursuant to a published fee schedule, including the rates and basis for charging fees for any extraordinary services, and any other bases upon which a fee charged to the estate will be calculated. This disclosure obligation shall be continuing in nature so as to require supplemental disclosures if material changes to the basis for charging fees take place. Colorado Revised Statutes 2019 Page 169 of 600 Uncertified Printout Source: L. 2011: Entire part added, (SB 11-083), ch. 101, p. 296, § 1, effective August 10. L. 2012: (7)(b)(I) amended, (SB 12-175), ch. 208, p. 837, § 41, effective July 1. L. 2016: (5), (6), and (7)(b)(I) amended, (SB 16-131), ch. 286, p. 1166, § 5, effective August 10. 15-10-603. Factors in determining the reasonableness of compensation and costs. (1) A court may review and determine: (a) The reasonableness of the compensation of any fiduciary, lawyer, or other person who: (I) Is employed on behalf of an estate, fiduciary, respondent, ward, or protected person; (II) Is appointed by the court; or (III) Provides beneficial services to an estate, respondent, ward, or protected person; and (b) The appropriateness of any cost sought to be paid by or recovered from an estate. (2) In considering the reasonableness of the compensation, there shall be no presumption that any method of charging a fee for services rendered to an estate, fiduciary, principal, respondent, ward, or protected person is per se unreasonable. Regardless of the method used for charging a fee, in determining appropriate compensation, the court shall apply the standard of reasonableness in light of all relevant facts and circumstances. (3) The court shall consider all of the factors described in this subsection (3) in determining the reasonableness of any compensation or cost. The court may determine the weight to be given to each factor and to any other factor the court considers relevant in reaching its decision: (a) The time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the service properly; (b) The likelihood, if apparent to the fiduciary, that the acceptance of the particular employment will preclude the person employed from other employment; (c) (I) The compensation customarily charged in the community for similar services with due consideration and allowance for the complexity or uniqueness of any administrative or litigated issues, the need for and local availability of specialized knowledge or expertise, and the need for and advisability of retaining outside fiduciaries or lawyers to avoid potential conflicts of interest; (II) As used in this subsection (3), unless the context otherwise requires, "community" means the general geographical area in which the estate is being administered or in which the respondent, ward, or protected person resides. (d) The nature and size of the estate, the liquidity or illiquidity of the estate, and the results and benefits obtained during the administration of the estate; (e) Whether and to what extent any litigation has taken place and the results of such litigation; (f) The life expectancy and needs of the respondent, ward, protected person, devisee, beneficiary, or principal; (g) The time limitations imposed on or by the fiduciary or by the circumstances of the administration of the estate; (h) The adequacy of any detailed billing statements upon which the compensation is based; (i) Whether the fiduciary has charged variable rates that reflect comparable payment standards in the community for like services; Colorado Revised Statutes 2019 Page 170 of 600 Uncertified Printout (j) The expertise, special skills, reputation, and ability of the person performing the services and, in the case of a fiduciary, whether and to what extent the fiduciary has had any prior experience in administering estates similar to those for which compensation is sought; (k) The terms of a governing instrument; (l) The various courses of action available to a fiduciary or an individual seeking compensation for a particular service or alleged benefit and whether the course of action taken was reasonable and appropriate under the circumstances existing at the time the service was performed; and (m) The various courses of action available to a fiduciary or an individual seeking compensation for a particular service or alleged benefit and the cost-effectiveness of the action taken under the circumstances existing at the time the service was performed. (4) If a governing instrument provides that a fiduciary is entitled to receive compensation in accordance with a published fee schedule in effect at the time the services are performed, fees charged in accordance with the published fee schedule shall be presumed to be reasonable. The absence of such a provision in a governing instrument shall not preclude the fiduciary from receiving compensation in accordance with a published fee schedule in effect at the time the services are performed. (5) Nothing in this section shall be interpreted to prohibit members or employees of a professional fiduciary's organization or law firm, including partners, associates, paralegals, law clerks, trust officers, caregivers, and social workers, from collaborating on the same service so long as the collaboration is reasonable and the total compensation charged for the service in the aggregate is reasonable under the circumstances. Source: L. 2011: Entire part added, (SB 11-083), ch. 101, p. 298, § 1, effective August 10. L. 2013: (3)(j) amended, (SB 13-077), ch. 190, p. 767, § 2, effective August 7. 15-10-604. Fee disputes - process and procedure. (1) A dispute over the reasonableness of a request for compensation or costs authorized by this part 6 shall be resolved in accordance with the factors set forth in section 15-10-603 (3) and the process and procedure set forth in this section. (2) For purposes of this section, a fee dispute shall be deemed to have arisen when an objection to compensation or costs has been filed in a proceeding. (3) After the objection to compensation or costs has been filed, the person requesting compensation or costs shall have thirty-five days, or a greater or lesser time as the court may direct, to make available to the objector for inspection and copying all documentation that the person deems necessary to establish the reasonableness of the compensation and costs in consideration of the factors set forth in section 15-10-603 (3) and to certify to the court that such documentation was made available to the objector on a certain date. The objector shall then have fourteen days, or a greater or lesser time as the court may direct, to file specific written objections to such compensation and costs based on the factors set forth in section 15-10-603 (3). The fourteen days shall commence on the date that the person makes the documentation available to the objector or upon the filing of the person's certification, whichever is later. The court may permit further discovery on the compensation and cost issues raised by the pleadings only upon good cause shown. Colorado Revised Statutes 2019 Page 171 of 600 Uncertified Printout (4) Subject to the court's inherent authority to order alternative dispute resolution methods, the court shall determine, after notice and hearing, the amount of compensation and costs it considers to be reasonable and shall issue its findings of fact and conclusions of law referencing the factors set forth in section 15-10-603 (3) and any other factors it deems relevant to its decision. Source: L. 2011: Entire part added, (SB 11-083), ch. 101, p. 300, § 1, effective August 10. L. 2012: (3) amended, (SB 12-175), ch. 208, p. 837, § 42, effective July 1. 15-10-605. Compensation and costs - assessment - limitations. (1) If the court determines that any proceedings pursuant to this code or any pleadings filed in such proceedings were brought, defended, or filed in bad faith, the court may assess the fees and the costs, including reasonable attorney fees, incurred by the fiduciary and other affected parties in responding to the proceedings or pleadings, against an estate, party, person, or entity that brought or defended the proceedings or filed the pleadings in bad faith. Nothing in this section is intended to limit any other remedy, sanction, or surcharge provided by law. (2) If any person entitled to compensation under this part 6 is required to defend the reasonableness of compensation or costs in a proceeding, the court may review the fees and costs incurred by the person in defending the compensation or costs, and the fees incurred in challenging the compensation and costs, and may assess the reasonable fees and costs incurred in the proceeding as the court deems equitable. The court may allocate fees or costs assessed pursuant to this subsection (2) in favor of or against the estate or any party, person, or entity involved in the proceeding as justice and equity may require. (3) A person who is unsuccessful in defending the reasonableness of compensation or costs at a hearing shall not be entitled to recover the fees or costs of that defense as the court deems equitable. (4) A fiduciary who is unsuccessful in defending the fiduciary's conduct in a proceeding pursuant to this code alleging breach of fiduciary duty shall not recover the fees or costs of that defense as the court deems equitable. Source: L. 2011: Entire part added, (SB 11-083), ch. 101, p. 301, § 1, effective August 10. 15-10-606. Applicability. (1) This part 6 applies to: (a) An estate existing before, on, or after August 10, 2011; and (b) Proceedings to determine the reasonableness of compensation and costs commenced on or after August 10, 2011. (2) This part 6 does not apply to proceedings to determine the reasonableness of compensation and costs commenced before August 10, 2011, unless the court determines that the application of this part 6 would not prejudice the rights of any party to the proceeding and the court directs otherwise. Source: L. 2011: Entire part added, (SB 11-083), ch. 101, p. 302, § 1, effective August 10. Colorado Revised Statutes 2019 Page 172 of 600 Uncertified Printout ARTICLE 11 Intestate Succession and Wills Editor's note: Articles 10 to 17 of this title were repealed and reenacted in 1973, and parts 1 to 9 of this article were subsequently repealed and reenacted in 1994, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to parts 1 to 9 of this article prior to 1994, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note immediately preceding article 10 of this title. Former C.R.S. section numbers prior to 1994 are shown in editor's notes following those sections that were relocated. For a detailed comparison of parts 1 to 9 of this article for 1994, see the comparative tables located in the back of the index. Law reviews: For article, "Highlights of the Uniform Probate Code, Article II", see 23 Colo. Law. 2279 (1994). PART 1 INTESTATE SUCCESSION SUBPART 1 GENERAL RULES Cross references: For clarification of the term "surviving spouse", see § 15-11-802. 15-11-101. Intestate estate. (1) Any part of a decedent's estate not effectively disposed of by will or otherwise passes by intestate succession to the decedent's heirs as prescribed in this code, except as modified by the decedent's will. (2) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his or her intestate share. Source: L. 94: Entire part R&RE, p. 976, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-101 as it existed prior to 1995. 15-11-102. Share of spouse. The various possible circumstances describing the decedent, his or her surviving spouse, and their surviving descendants, if any, are set forth in this section to be utilized in determining the intestate share of the decedent's surviving spouse. If more than one circumstance is applicable, the circumstance that produces the largest share for the surviving spouse shall be applied. The intestate share of a decedent's surviving spouse is: Colorado Revised Statutes 2019 Page 173 of 600 Uncertified Printout (1) The entire intestate estate if: (a) No descendant or parent of the decedent survives the decedent; or (b) All of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent; (2) The first three hundred thousand dollars, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent; (3) The first two hundred twenty-five thousand dollars, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent; (4) The first one hundred fifty thousand dollars, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse. (5) (Deleted by amendment, L. 2009, (HB 09-1287), ch. 310, p. 1671, § 3, effective July 1, 2010.) (6) The dollar amounts stated in this section shall be increased or decreased based on the cost of living adjustment as calculated and specified in section 15-10-112. Source: L. 94: Entire part R&RE, p. 976, § 3, effective July 1, 1995. L. 95: Entire section amended, p. 352, § 1, effective July 1. L. 2009: Entire section amended, (HB 09-1287), ch. 310, p. 1671, § 3, effective July 1, 2010. Editor's note: This section is similar to former § 15-11-102 as it existed prior to 1995. Cross references: For the descent and distribution of property of aliens, see § 15-11-111. For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-11-102.5. Share of designated beneficiary. (1) If the decedent is survived by a person with the right to inherit real or personal property from the decedent in a designated beneficiary agreement executed pursuant to article 22 of this title, the intestate share of the decedent's designated beneficiary is: (a) The entire estate if no descendent of the decedent survives the decedent; or (b) One half of the intestate estate if one or more descendants of the decedent survive the decedent. Source: L. 2010: Entire section added, (SB 10-199), ch. 374, p. 1748, § 4, effective July 1. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-11-103. Share of heirs other than surviving spouse and designated beneficiary. Any part of the intestate estate not passing to the decedent's surviving spouse under section 15Colorado Revised Statutes 2019 Page 174 of 600 Uncertified Printout 11-102, or to the decedent's surviving designated beneficiary under section 15-11-102.5, or the entire intestate estate if there is no surviving spouse and no surviving designated beneficiary with the right to inherit real or personal property from the decedent through intestate succession, passes in the following order to the individuals who survive the decedent: (1) (Deleted by amendment, L. 2010, (SB 10-199), ch. 374, p. 1748, § 5, effective July 1, 2010.) (2) To the decedent's descendants per capita at each generation; (3) If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent if only one survives; (4) If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them per capita at each generation; (5) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents: (a) Half to the decedent's paternal grandparents equally if both survive, to the surviving paternal grandparent if only one survives, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking per capita at each generation; and (b) Half to the decedent's maternal grandparents equally if both survive, to the surviving maternal grandparent if only one survives, or to the descendants of the decedent's maternal grandparents or either of them if both are deceased, the descendants taking per capita at each generation; (6) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent's relatives on the side with one or more surviving members in the manner as described in subsection (5) of this section; (7) (Deleted by amendment, L. 2010, (SB 10-199), ch. 374, p. 1748, § 5, effective July 1, 2010.) (8) (Deleted by amendment, L. 2009, (HB 09-1287), ch. 310, p. 1672, § 4, effective July 1, 2010.) Source: L. 94: Entire part R&RE, p. 977, § 3, effective July 1, 1995. L. 95: Entire section amended, p. 353, § 2, effective July 1. L. 2009: Entire section amended, (HB 09-1260), ch. 107, p. 443, § 7, effective July 1; entire section amended, (HB 09-1287), ch. 310, p. 1672, § 4, effective July 1, 2010. L. 2010: IP, (1), and (7) amended, (SB 10-199), ch. 374, p. 1748, § 5, effective July 1. Editor's note: (1) This section is similar to former § 15-11-103 as it existed prior to 1995. (2) Amendments to this section by House Bill 09-1260 and House Bill 09-1287 were harmonized, effective July 1, 2010; except that the second sentence of subsection (7) and the provisions of subsection (8), as amended by House Bill 09-1260, were superseded by House Bill 09-1287, effective July 1, 2010. Colorado Revised Statutes 2019 Page 175 of 600 Uncertified Printout Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-11-104. Requirement of survival by one hundred twenty hours - individual gestation. (1) For purposes of intestate succession and exempt property, and except as otherwise provided in paragraph (b) of this subsection (1), the following rules apply: (a) An individual born before a decedent's death who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual born before the decedent's death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period. (b) An individual in gestation at a decedent's death is deemed to be living at the decedent's death if the individual lives one hundred twenty hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent's death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period. (2) This section is not to be applied if its application would result in a taking of intestate estate by the state under section 15-11-105. Source: L. 94: Entire part R&RE, p. 978, § 3, effective July 1, 1995. L. 2009: Entire section amended, (HB 09-1287), ch. 310, p. 1673, § 5, effective July 1, 2010. Editor's note: This section is similar to former § 15-11-104 as it existed prior to 1995. Cross references: For requirement that a devisee survive a testator by one hundred twenty hours, see § 15-11-702. For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-11-105. No taker. If there is no taker under the provisions of this article, the intestate estate passes to the state of Colorado, subject to the provisions of section 15-12-914. Source: L. 94: Entire part R&RE, p. 978, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-105 as it existed prior to 1995. 15-11-106. Per capita at each generation. (1) Definitions. As used in this section, unless the context otherwise requires: (a) "Deceased descendant", "deceased parent", or "deceased grandparent" means a descendant, parent, or grandparent who either predeceased the decedent or is deemed to have predeceased the decedent under section 15-11-104. (b) "Surviving descendant" means a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under section 15-11-104. (2) Decedent's descendants. If, under section 15-11-103 (2), a decedent's intestate estate or a part thereof passes "per capita at each generation" to the decedent's descendants, the estate or part thereof is divided into as many equal shares as there are (i) surviving descendants Colorado Revised Statutes 2019 Page 176 of 600 Uncertified Printout in the generation nearest to the decedent which contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who are allocated a share and their surviving descendants had predeceased the decedent. (3) Descendants of parents or grandparents. If, under section 15-11-103 (4) or (6), a decedent's intestate estate or a part thereof passes "per capita at each generation" to the descendants of the decedent's deceased parents or either of them, or to the descendants of the decedent's deceased grandparents or any of them, the estate or part thereof is divided into as many equal shares as there are (i) surviving descendants in the generation nearest to the deceased parents or either of them, or the deceased grandparents or any of them, that contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent. Source: L. 94: Entire part R&RE, p. 978, § 3, effective July 1, 1995. L. 95: (2) and (3) amended, p. 354, § 3, effective July 1. L. 2009: (2) and (3) amended, (HB 09-1260), ch. 107, p. 444, § 8, effective July 1. Editor's note: This section is similar to former § 15-11-106 as it existed prior to 1995. 15-11-107. Kindred of half blood. Relatives of half blood inherit the same share they would inherit if they were of whole blood. Source: L. 94: Entire part R&RE, p. 979, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-107 as it existed prior to 1995. 15-11-108. After-born heirs - repeal. (Repealed) Source: L. 94: Entire part R&RE, p. 979, § 3, effective July 1, 1995. L. 2009: (2) added by revision, (HB 09-1287), ch. 310, pp. 1674, 1688, §§ 6, 17. Editor's note: (1) This section was similar to former § 15-11-108 as it existed prior to 1995. (2) Subsection (2) provided for the repeal of this section, effective July 1, 2010. (See L. 2009, pp. 1674, 1688.) 15-11-109. Advancements. (1) If an individual dies intestate as to all or a portion of his or her estate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if (i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing Colorado Revised Statutes 2019 Page 177 of 600 Uncertified Printout that the gift is an advancement, or (ii) the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate. (2) For the purposes of subsection (1) of this section, property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent's death, whichever first occurs. (3) If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate, unless the decedent's contemporaneous writing provides otherwise. (4) An heir who has received from the intestate estate more than his or her share shall in no case be required to refund, except as otherwise provided by section 15-11-203. Source: L. 94: Entire part R&RE, p. 979, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-110 as it existed prior to 1995. 15-11-110. Debts to decedent. A debt owed to a decedent is not charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's descendants. Source: L. 94: Entire part R&RE, p. 979, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-111 as it existed prior to 1995. Cross references: For an offset against a successor's interest for a noncontingent indebtedness to an estate, see § 15-12-903. 15-11-111. Alienage. No individual is disqualified to take as an heir, devisee, grantee, lessee, mortgagee, assignee, or other transferee because the individual or an individual through whom he or she claims is or has been an alien. Source: L. 94: Entire part R&RE, p. 980, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-112 as it existed prior to 1995. 15-11-112. Dower and courtesy abolished. The estates of dower and courtesy are abolished. Source: L. 94: Entire part R&RE, p. 980, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-113 as it existed prior to 1995. 15-11-113. Individuals related to decedent through two blood lines. An individual who is related to the decedent through two blood lines of relationship is entitled to only a single share based upon the relationship which would entitle the individual to the larger share. Colorado Revised Statutes 2019 Page 178 of 600 Uncertified Printout Source: L. 94: Entire part R&RE, p. 980, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-114 as it existed prior to 1995. 15-11-114. Parent barred from inheriting in certain circumstances. (1) A parent is barred from inheriting from or through a child of the parent if: (a) The parent's parental rights were terminated and the parent-child relationship was not judicially reestablished; or (b) The child died before reaching eighteen years of age and there is clear and convincing evidence that immediately before the child's death the parental rights of the parent could have been terminated under the laws of this state other than this code on the basis of nonsupport, abandonment, abuse, neglect, or other actions or inactions of the parent toward the child. (2) For the purpose of intestate succession from or through the deceased child, a parent who is barred from inheriting under this section is treated as if the parent predeceased the child. Source: L. 94: Entire part R&RE, p. 980, § 3, effective July 1, 1995. L. 2009: (2) amended, (HB 09-1260), ch. 107, p. 444, § 9, effective July 1; entire section amended, (HB 091287), ch. 310, p. 1674 § 7, effective July 1, 2010. Editor's note: This section is similar to former § 15-11-109 as it existed prior to 1995. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. For legal effects of a final decree of adoption, see § 19-5-211. For the legal effect of a final order of relinquishment, see § 19-5-104. SUBPART 2 PARENT-CHILD RELATIONSHIP Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101; for other provisions on parent-child relationships, see the "Uniform Parentage Act", article 4 of title 19. Law reviews. For article, "The Adoptee Trap, the Accidental Beneficiary, and the Rational Testator", see 42 Colo. Law. 29 (Feb. 2013). 15-11-115. Definitions. In this subpart 2: (1) "Adoptee" means an individual who is adopted. (2) "Assisted reproduction" means a method of causing pregnancy other than sexual intercourse. (3) "Divorce" includes an annulment, dissolution of marriage, and declaration of invalidity of a marriage. (4) "Functioned as a parent of the child" means behaving toward a child in a manner consistent with being the child's parent and performing functions that are customarily performed Colorado Revised Statutes 2019 Page 179 of 600 Uncertified Printout by a parent, including fulfilling parental responsibilities toward the child, recognizing or holding out the child as the individual's child, materially participating in the child's upbringing, and residing with the child in the same household as a regular member of that household. (5) "Genetic father" means the man whose sperm fertilized the egg of a child's genetic mother. If the father-child relationship is established under the presumption of paternity under section 19-4-105, C.R.S., the term means only the man for whom that relationship is established. (6) "Genetic mother" means the woman whose egg was fertilized by the sperm of a child's genetic father. (7) "Genetic parent" means a child's genetic father or genetic mother. (8) "Incapacity" means the inability of an individual to function as a parent of a child because of the individual's physical or mental condition. (9) "Relative" means a grandparent or a descendant of a grandparent. Source: L. 2009: Entire section added, (HB 09-1287), ch. 310, p. 1675, § 8, effective July 1, 2010. 15-11-116. Effect of parent-child relationship. Except as otherwise provided in section 15-11-119, if a parent-child relationship exists or is established under this subpart 2, the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession. Source: L. 2009: Entire section added, (HB 09-1287), ch. 310, p. 1676, § 8, effective July 1, 2010. Cross references: For other provisions on establishing parent-child relationships, see the "Uniform Parentage Act", article 4 of title 19. 15-11-117. No distinction based on marital status. Except as otherwise provided in section 15-11-114, 15-11-119, 15-11-120, or 15-11-121, a parent-child relationship exists between a child and the child's genetic parents, regardless of the parents' marital status. Source: L. 2009: Entire section added, (HB 09-1287), ch. 310, p. 1676, § 8, effective July 1, 2010. Cross references: For another provision on marital status, see § 19-4-103. 15-11-118. Adoptee and adoptee's adoptive parent or parents. (1) Parent-child relationship between adoptee and adoptive parent or parents. A parent-child relationship exists between an adoptee and the adoptee's adoptive parent or parents. (2) Individual in process of being adopted by married couple - stepchild in process of being adopted by stepparent. For purposes of subsection (1) of this section: (a) An individual who is in the process of being adopted by a married couple when one of the spouses dies is treated as adopted by the deceased spouse if the adoption is subsequently granted to the decedent's surviving spouse; and Colorado Revised Statutes 2019 Page 180 of 600 Uncertified Printout (b) A child of a genetic parent who is in the process of being adopted by a genetic parent's spouse when the spouse dies is treated as adopted by the deceased spouse if the genetic parent survives the deceased spouse by one hundred twenty hours. (2.5) Individual in process of being adopted by second parent. For purposes of subsection (1) of this section, a child who is in the process of being adopted by a second adult in a second-parent adoption when the second adult dies is treated as adopted by the second adult if the child's parent survives the second adult by one hundred twenty hours. (3) Child of assisted reproduction or gestational child in process of being adopted. If, after a parent-child relationship is established between a child of assisted reproduction and a parent under section 15-11-120 or between a gestational child and a parent under section 15-11121, the child is in the process of being adopted by the parent's spouse or another individual when that spouse or individual dies, the child is treated as adopted by the deceased spouse or individual for the purpose of paragraph (b) of subsection (2) of this section. Source: L. 2009: Entire section added, (HB 09-1287), ch. 310, p. 1676, § 8, effective July 1, 2010. L. 2010: (2.5) added and (3) amended, (SB 10-199), ch. 374, p. 1749, § 6, effective July 1. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. For other provisions on assisted reproduction and paternity, see § 19-4-106. For legal effects of a final decree of adoption, see § 19-5-211. For the legal effect of a final order of relinquishment, see § 19-5-104. 15-11-119. Adoptee and adoptee's genetic parents. (1) Parent-child relationship between adoptee and genetic parents. Except as otherwise provided in this section, a parentchild relationship does not exist between an adoptee and the adoptee's genetic parents. (2) Stepchild adopted by stepparent. A parent-child relationship exists between an individual who is adopted by the spouse of either genetic parent and: (a) The genetic parent whose spouse adopted the individual; and (b) The other genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent. (2.5) Child of a second-parent adoption. A parent-child relationship exists between an individual who is adopted by a second parent and: (a) A genetic parent who consented to a second-parent adoption; and (b) Another genetic parent who is not a third-party donor, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent. (3) Individual adopted by relative of genetic parent. A parent-child relationship exists between both genetic parents and an individual who is adopted by a relative of a genetic parent, or by the spouse or surviving spouse of a relative of a genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through either genetic parent. (4) Individual adopted after death of both genetic parents. A parent-child relationship exists between both genetic parents and an individual who is adopted after the death Colorado Revised Statutes 2019 Page 181 of 600 Uncertified Printout of both genetic parents, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit through either genetic parent. (5) Child of assisted reproduction or gestational child who is subsequently adopted. If, after a parent-child relationship is established between a child of assisted reproduction and a parent or parents under section 15-11-120 or between a gestational child and a parent or parents under section 15-11-121, the child is adopted by another or others, the child's parent or parents under section 15-11-120 or 15-11-121 are treated as the child's genetic parent or parents for the purpose of this section. Source: L. 2009: Entire section added, (HB 09-1287), ch. 310, p. 1676, § 8, effective July 1, 2010. L. 2010: (2.5)(a) and (2.5)(b) amended, (SB 10-199), ch. 374, p. 1749, § 7, effective July 1. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. For other provisions on assisted reproduction and paternity, see § 19-4-106. For legal effects of a final decree of adoption, see § 19-5-211. For the legal effect of a final order of relinquishment, see § 19-5-104. 15-11-120. Child conceived by assisted reproduction other than child born to gestational carrier. (1) Definitions. In this section: (a) "Birth mother" means a woman, other than a gestational carrier under section 15-11121, who gives birth to a child of assisted reproduction. The term is not limited to a woman who is the child's genetic mother. (b) "Child of assisted reproduction" means a child conceived by means of assisted reproduction by a woman other than a gestational carrier under section 15-11-121. (c) "Third-party donor" means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include: (I) A husband who provides sperm, or a wife who provides eggs, that are used for assisted reproduction by the wife; (II) The birth mother of a child of assisted reproduction; or (III) An individual who has been determined under subsection (5) or (6) of this section to have a parent-child relationship with a child of assisted reproduction. (2) Third-party donor. A parent-child relationship does not exist between a child of assisted reproduction and a third-party donor. (3) Parent-child relationship with birth mother. A parent-child relationship exists between a child of assisted reproduction and the child's birth mother. (4) Parent-child relationship with husband whose sperm were used during his lifetime by his wife for assisted reproduction. Except as otherwise provided in subsections (9) and (10) of this section, a parent-child relationship exists between a child of assisted reproduction and the husband of the child's birth mother if the husband provided the sperm that the birth mother used during his lifetime for assisted reproduction. (5) Birth certificate - presumptive effect. A birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual. Colorado Revised Statutes 2019 Page 182 of 600 Uncertified Printout (6) Parent-child relationship with another. Except as otherwise provided in subsections (7), (9), and (10) of this section, and unless a parent-child relationship is established under subsection (4) or (5) of this section, a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child. Consent to assisted reproduction by the birth mother with intent to be treated as the other parent of the child is established if the individual: (a) Before or after the child's birth, signed a record that, considering all the facts and circumstances, evidences the individual's consent; or (b) In the absence of a signed record under paragraph (a) of this subsection (6): (I) Functioned as a parent of the child no later than two years after the child's birth; (II) Intended to function as a parent of the child no later than two years after the child's birth but was prevented from carrying out that intent by death, incapacity, or other circumstances; or (III) Intended to be treated as a parent of a posthumously conceived child, if that intent is established by clear and convincing evidence. (7) Record signed more than two years after the birth of the child - effect. For the purpose of paragraph (a) of subsection (6) of this section, neither an individual who signed a record more than two years after the birth of the child, nor a relative of that individual who is not also a relative of the birth mother, inherits from or through the child unless the individual functioned as a parent of the child before the child reached eighteen years of age. (8) Presumption - birth mother is married or surviving spouse. For the purpose of paragraph (b) of subsection (6) of this section, the following rules apply: (a) If the birth mother is married at the time of conception and no divorce proceeding is then pending, her spouse is presumed to satisfy the requirements of subparagraph (I) or (II) of paragraph (b) of subsection (6) of this section. (b) If the birth mother is a surviving spouse and at her deceased spouse's death no divorce proceeding was pending, her deceased spouse is presumed to satisfy the requirements of subparagraph (II) or (III) of paragraph (b) of subsection (6) of this section. (9) Divorce before placement of eggs, sperm, or embryos. If a married couple is divorced before placement of eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of the birth mother's former spouse, unless the former spouse consented in a record that if assisted reproduction were to occur after divorce, the child would be treated as the former spouse's child. (10) Withdrawal of consent before placement of eggs, sperm, or embryos. If, in a record, an individual withdraws consent to assisted reproduction before placement of eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of that individual, unless the individual subsequently satisfies subsection (6) of this section. (11) When posthumously conceived child treated as in gestation. If, under this section, an individual is a parent of a child of assisted reproduction who is conceived after the individual's death, the child is treated as in gestation at the time of the individual's death for purposes of section 15-11-104 (1)(b) if the child is: (a) In utero not later than thirty-six months after the individual's death; or (b) Born not later than forty-five months after the individual's death. Colorado Revised Statutes 2019 Page 183 of 600 Uncertified Printout Source: L. 2009: Entire section added, (HB 09-1287), ch. 310, p. 1677, § 8, effective July 1, 2010. L. 2010: (8) amended, (SB 10-199), ch. 374, p. 1750, § 8, effective July 1. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. For other provisions on assisted reproduction and paternity, see § 19-4-106. 15-11-121. Child born to gestational carrier. (1) In this section: (a) "Gestational agreement" means an enforceable or unenforceable agreement for assisted reproduction in which a woman agrees to carry a child to birth for an intended parent, intended parents, or an individual described in subsection (5) of this section. (b) "Gestational carrier" means a woman who is not an intended parent who gives birth to a child under a gestational agreement. The term is not limited to a woman who is the child's genetic mother. (c) "Gestational child" means a child born to a gestational carrier under a gestational agreement. (d) "Intended parent" means an individual who entered into a validated gestational agreement providing that the individual will be the parent of a child born to a gestational carrier by means of assisted reproduction. The term is not limited to an individual who has a genetic relationship with the child. (2) Court order adjudicating parentage - effect. A parent-child relationship is conclusively established by a court order designating the parent or parents of a gestational child. (3) Gestational carrier. A parent-child relationship between a gestational child and the child's gestational carrier does not exist unless the gestational carrier is: (a) Designated as a parent of the child in a court order described in subsection (2) of this section; or (b) The child's genetic mother and a parent-child relationship does not exist under this section with an individual other than the gestational carrier. (4) Parent-child relationship with intended parent or parents. In the absence of a court order under subsection (2) of this section, a parent-child relationship exists between a gestational child and an intended parent who: (a) Functioned as a parent of the child no later than two years after the child's birth; or (b) Died while the gestational carrier was pregnant if: (I) There were two intended parents and the other intended parent functioned as a parent of the child no later than two years after the child's birth; (II) There were two intended parents, the other intended parent also died while the gestational carrier was pregnant, and a relative of either deceased intended parent or the spouse or surviving spouse of a relative of either deceased intended parent functioned as a parent of the child no later than two years after the child's birth; or (III) There was no other intended parent and a relative of or the spouse or surviving spouse of a relative of the deceased intended parent functioned as a parent of the child no later than two years after the child's birth. (5) Gestational agreement after death or incapacity. In the absence of a court order under subsection (2) of this section, a parent-child relationship exists between a gestational child and an individual whose sperm or eggs were used after the individual's death or incapacity to Colorado Revised Statutes 2019 Page 184 of 600 Uncertified Printout conceive a child under a gestational agreement entered into after the individual's death or incapacity if the individual intended to be treated as the parent of the child. The individual's intent may be shown by: (a) A record signed by the individual which considering all the facts and circumstances evidences the individual's intent; or (b) Other facts and circumstances establishing the individual's intent by clear and convincing evidence. (6) Presumption - gestational agreement after spouse's death or incapacity. Except as otherwise provided in subsection (7) of this section, and unless there is clear and convincing evidence of a contrary intent, an individual is deemed to have intended to be treated as the parent of a gestational child for purposes of paragraph (b) of subsection (5) of this section if: (a) The individual, before death or incapacity, deposited the sperm or eggs that were used to conceive the child; (b) When the individual deposited the sperm or eggs, the individual was married and no divorce proceeding was pending; and (c) The individual's spouse or surviving spouse functioned as a parent of the child no later than two years after the child's birth. (7) Subsection (6) presumption inapplicable. The presumption under subsection (6) of this section does not apply if there is: (a) A court order under subsection (2) of this section; or (b) A signed record that satisfies paragraph (a) of subsection (5) of this section. (8) When posthumously conceived gestational child treated as in gestation. If, under this section, an individual is a parent of a gestational child who is conceived after the individual's death, the child is treated as in gestation at the time of the individual's death for purposes of section 15-11-104 (1)(b) if the child is: (a) In utero not later than thirty-six months after the individual's death; or (b) Born not later than forty-five months after the individual's death. (9) No effect on other laws. This section does not affect laws of this state other than this code regarding the enforceability or validity of a gestational agreement. Source: L. 2009: Entire section added, (HB 09-1287), ch. 310, p. 1679, § 8, effective July 1, 2010. Cross references: For other provisions on assisted reproduction and paternity, see § 194-106. 15-11-122. Equitable adoption. This subpart 2 does not affect the doctrine of equitable adoption. Source: L. 2009: Entire section added, (HB 09-1287), ch. 310, p. 1682, § 8, effective July 1, 2010. PART 2 ELECTIVE-SHARE OF SURVIVING SPOUSE Colorado Revised Statutes 2019 Page 185 of 600 Uncertified Printout Editor's note: This part 2 was numbered as article 2 of chapter 153, C.R.S. 1963. It was repealed and reenacted in 1973 and 1994 and was subsequently repealed and reenacted in 2014, resulting in the addition, relocation, or elimination of sections as well as subject matter. For amendments to this part 2 prior to 2014, consult the 2013 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume. Former C.R.S. section numbers prior to 2014 are shown in editor's notes following those sections that were relocated. Cross references: For clarification of the term "surviving spouse", see § 15-11-802; for the "Uniform Premarital and Marital Agreements Act", see part 3 of article 2 of title 14. Law reviews: For article, "The Surviving Spouse Elective Share and the Augmented Estate", see 17 Colo. Law. 1985 (1988); for article, "Working with the New Augmented Estate", see 24 Colo. Law. 2337 (1995); for article, "Substitutes for Marital Agreements in Elective Share Planning The Surviving Spouse Incentive Trust and Source Stripping", see 44 Colo. Law. 57 (Dec. 2015); for article, "Estate Planning Tools for Second Marriages", see 45 Colo. Law. 45 (Dec. 2016). 15-11-201. Definitions. (1) "Bona fide purchaser" means a purchaser for value in good faith and without notice of an adverse claim. The notation of a state documentary fee on a recorded instrument pursuant to section 39-13-103, C.R.S., is prima facie evidence that the transfer described therein was made to a bona fide purchaser. (2) "Decedent's nonprobate transfers to others" means amounts that are included in the augmented estate under section 15-11-205. (3) "Fractional interest in property held in joint tenancy with the right of survivorship", whether the fractional interest is unilaterally severable or not, and if the interests are equal, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants. If the interests are unequal, "fractional interest in property held in joint tenancy with the right of survivorship" means the decedent's interest immediately preceding the decedent's death. (4) "Marriage", as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent's surviving spouse. (5) "Nonadverse party" means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that he or she possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property. (6) "Power" or "power of appointment" includes a power to designate the beneficiary of a beneficiary designation, including beneficiary designations under individual retirement accounts and annuities described in section 408 of the federal "Internal Revenue Code of 1986", as amended, as well as other pension plans or arrangements not subject to part 2 (section 201 et seq.) of the federal "Employee Retirement Income Security Act of 1974", as amended (29 U.S.C. sec. 1051 et seq.). Colorado Revised Statutes 2019 Page 186 of 600 Uncertified Printout (7) "Presently exercisable general power of appointment" means a power of appointment under which, at the time in question, the decedent, whether or not he or she then had the capacity to exercise the power, held a power to create a present or future interest in himself or herself, his or her creditors, his or her estate, or the creditors of his or her estate, and includes a power to revoke or invade the principal of a trust or other property arrangement. (8) "Property" includes values subject to a beneficiary designation. (9) "Right to income" includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement. (10) "Transfer", as it relates to a transfer by or on behalf of the decedent, includes: (a) An exercise or release of a presently exercisable general power of appointment held by the decedent; (b) A lapse at death of a presently exercisable general power of appointment held by the decedent; and (c) An exercise, release, or lapse of a presently exercisable general power of appointment that the decedent created in himself or herself and of a power described in section 15-11-205 (2)(b) that the decedent conferred on a nonadverse party. (11) "Value", unless otherwise indicated, means fair market value as of the decedent's date of death. Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1220, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-202 (1) as it existed prior to 2014. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-11-202. Elective-share. (1) Elective-share amount. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this part 2, to take an elective-share amount equal to fifty percent of the value of the marital-property portion of the augmented estate. (2) (a) Supplemental elective-share amount. If the sum of the amounts described in sections 15-11-207, 15-11-209 (1)(a), and that part of the elective-share amount payable from the decedent's net probate estate and nonprobate transfers to others under section 15-11-209 (3)(a) and (3)(b) is less than fifty thousand dollars, the surviving spouse is entitled to a supplemental elective-share amount equal to fifty thousand dollars, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent's net probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in section 15-11-209 (3)(a) and (3)(b). (b) The court shall increase or decrease the dollar amount stated in paragraph (a) of this subsection (2) based on the cost of living adjustment as calculated and specified in section 1510-112. (3) Effect of election on statutory benefits. If the right of election is exercised by or on behalf of the surviving spouse, the exempt property and family allowance, if any, are not Colorado Revised Statutes 2019 Page 187 of 600 Uncertified Printout charged against but are in addition to the elective-share and supplemental elective-share amounts. (4) Nondomiciliary. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective-share in property in this state is governed by the law of the decedent's domicile at death. Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1222, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-201 as it existed prior to 2014. 15-11-203. Composition of the marital-property portion of the augmented estate. (1) Subject to section 15-11-208, the value of the augmented estate, to the extent provided in sections 15-11-204, 15-11-205, 15-11-206, and 15-11-207, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitutes: (a) The decedent's net probate estate; (b) The decedent's nonprobate transfers to others; (c) The decedent's nonprobate transfers to the surviving spouse; and (d) The surviving spouse's property and nonprobate transfers to others. (2) The value of the marital-property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate as determined under subsection (1) of this section multiplied by the following percentage: If the decedent and the spouse were married to each other: Less than 1 year 1 year but less than 2 years 2 years but less than 3 years 3 years but less than 4 years 4 years but less than 5 years 5 years but less than 6 years 6 years but less than 7 years 7 years but less than 8 years 8 years but less than 9 years 9 years but less than 10 years 10 years or more The percentage is: Supplemental amount only. 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1223, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-201 (1) as it existed prior to 2014. Colorado Revised Statutes 2019 Page 188 of 600 Uncertified Printout 15-11-204. Decedent's net probate estate. The value of the augmented estate includes the value of the decedent's probate estate, reduced by funeral and administrative expenses, family allowance, exempt property, and enforceable claims. Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1223, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-201 (2)(a) as it existed prior to 2014. 15-11-205. Decedent's nonprobate transfers to others. The value of the augmented estate includes the value of the decedent's nonprobate transfers to others, not included in the decedent's probate estate under section 15-11-204, of any of the following types, in the amount provided respectively for each type of transfer: (1) Property owned or owned in substance by the decedent immediately before death that passed outside probate at the decedent's death. Property included under this category consists of: (a) Property over which the decedent alone, immediately before death, held or retained a presently exercisable general power of appointment. The amount included is the value of the property subject to the power, to the extent that the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise to or for the benefit of any person other than the decedent's estate or surviving spouse; except that property over which the decedent had only a testamentary power of appointment is not included. Property over which the decedent had a general inter vivos power of appointment or withdrawal created in the decedent by a third party is includable unless the governing instrument contains a provision for its termination or lapse, in full or in part, during the life of the decedent. (b) The decedent's fractional interest in real property held by the decedent in joint tenancy with the right of survivorship created during the marriage to the surviving spouse, except as provided in section 15-11-208, and the decedent's fractional interest in personal property held by the decedent in joint tenancy with the right of survivorship. The amount included is the value of the decedent's fractional interest, to the extent that the fractional interest passed by right of survivorship at the decedent's death to a surviving joint tenant other than the decedent's surviving spouse. (c) The decedent's ownership interest in property or accounts held in POD, TOD, or coownership registration with the right of survivorship. The amount included is the value of the decedent's ownership interest, to the extent that the decedent's ownership interest passed at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse. (d) Except as provided in section 15-11-208, proceeds of insurance, including accidental death benefits, on the life of the decedent if the decedent owned the insurance policy immediately before death or if and to the extent that the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds. The amount included is the value of the proceeds, to the extent that they were payable at the decedent's death to or for the benefit of the decedent's estate or surviving spouse. (2) Property transferred in any of the following forms by the decedent during marriage: Colorado Revised Statutes 2019 Page 189 of 600 Uncertified Printout (a) Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent that the decedent's right terminated at or continued beyond the decedent's death. The amount included is the value of the fraction of the property to which the decedent's right related, to the extent that the fraction of the property passed outside probate to or for the benefit of any person other than the decedent's estate or surviving spouse; or (b) Any transfer in which the decedent created a power over the income or principal of the transferred property, exercisable by the decedent alone or in conjunction with any other person or exercisable by a nonadverse party, for the benefit of the decedent, the decedent's creditors, the decedent's estate, or the creditors of the decedent's estate. The amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent that the power in either case was exercisable at the decedent's death to or for the benefit of any person other than the decedent's surviving spouse or to the extent that the property subject to the power passed at the decedent's death, by exercise, release, lapse, in default, or otherwise to or for the benefit of any person other than the decedent's estate or surviving spouse. If the power is a power over both income and property and the preceding sentence produces different amounts, the amount included is the greater amount. (3) Property that passed during marriage and during the two-year period next preceding the decedent's death as a result of a transfer by the decedent if the transfer was of any of the following types: (a) Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under paragraph (a), (b), or (c) of subsection (1) of this section or under subsection (2) of this section if the right, interest, or power had not terminated until the decedent's death. The amount included is the value of the property that would have been included under those provisions if the property were valued at the time that the right, interest, or power terminated and is included only to the extent that the property passed upon termination to or for the benefit of any person other than the decedent or the decedent's estate, spouse, or surviving spouse. As used in this subparagraph (I), "termination", with respect to a right or an interest in property, occurs when the right or interest terminates by the terms of the governing instrument or the decedent transfers or relinquishes the right of interest and, with respect to a power over property, when the power terminates by exercise, release, lapse, in default, or otherwise; except that, with respect to a power described in subparagraph (I) of paragraph (a) of this subsection (1), "termination" occurs when the power is terminated by exercise or release but not otherwise. (b) Any transfer of, or relating to, an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under subparagraph (IV) of paragraph (a) of this subsection (1) had the transfer not occurred. The amount included is the value of the insurance proceeds to the extent that the proceeds were payable at the decedent's death to or for the benefit of the decedent's estate or surviving spouse. (c) Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent's surviving spouse. The amount included is the value of the transferred property to the extent that the aggregate transfers to any one donee in either of the two years exceeded the amount excludable from taxable gifts Colorado Revised Statutes 2019 Page 190 of 600 Uncertified Printout under 26 U.S.C. sec. 2503 (b) or its successor on the date next preceding the date of the decedent's death. Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1223, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-201 (2)(b) as it existed prior to 2014. 15-11-206. Decedent's nonprobate transfers to the surviving spouse. Excluding property passing to the surviving spouse under the federal social security system after the decedent's date of death, the value of the augmented estate includes the value of the decedent's nonprobate transfers to the decedent's surviving spouse, which consist of all property that passed outside probate at the decedent's death from the decedent to the surviving spouse by reason of the decedent's death, including: (1) The decedent's fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse as surviving joint tenant; (2) The decedent's ownership interest in property or accounts held in POD, TOD, or coownership registration with the right of survivorship, to the extent the decedent's ownership interest passed to the surviving spouse as surviving co-owner; and (3) All other property that would have been included in the augmented estate under section 15-11-205 (1) or (2) had it passed to or for the benefit of a person other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors. Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1226, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-202 (2)(c) as it existed prior to 2014. Cross references: For protected persons and protective proceedings, see article 14 of this title. 15-11-207. Surviving spouse's property and nonprobate transfers to others. (1) Except to the extent included in the augmented estate under section 15-11-204 or 15-11-206, the value of the augmented estate includes the value of: (a) Property that was owned by the decedent's surviving spouse at the decedent's death, including: (I) The surviving spouse's fractional interest in real property held in joint tenancy with the right of survivorship created during the marriage to the decedent, except as provided in section 15-11-208, and the surviving spouse's fractional interest in personal property held by the surviving spouse in joint tenancy with the right of survivorship; Colorado Revised Statutes 2019 Page 191 of 600 Uncertified Printout (II) The surviving spouse's ownership interest in property or accounts held in POD, TOD, or co-ownership registration with the right of survivorship; and (III) Property that passed to the surviving spouse by reason of the decedent's death but not including the spouse's right to family allowance, exempt property, or payments under the federal social security system after the decedent's date of death; and (b) Property that would have been included in the surviving spouse's nonprobate transfers to others, other than the spouse's fractional and ownership interests included under subparagraphs (I) and (II) of paragraph (a) of this subsection (1) had the spouse been the decedent. (2) Property included under this section is valued at the decedent's death, taking the fact that the decedent predeceased the spouse into account, but for purposes of subparagraphs (I) and (II) of paragraph (a) of subsection (1) of this section, the values of the spouse's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a co-owner of the property or accounts. For purposes of this subsection (2), proceeds of insurance that would have been included in the spouse's nonprobate transfers to others under section 15-11-205 (1)(d) are not valued as if he or she were deceased. (3) The value of property included under this section is reduced by enforceable claims against the surviving spouse. Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1226, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-202 (2)(d) as it existed prior to 2014. Cross references: For rights of election, see § 15-11-201; for right to exempt property and family allowance, see §§ 15-11-403 and 15-11-404. 15-11-208. Exclusions, valuations, and overlapping application. (1) Exclusions. (a) The value of any property is excluded from the decedent's nonprobate transfers to others: (I) To the extent the decedent received adequate and full consideration in money or money's worth for a transfer of the property; or (II) If the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse; or (III) If the property was transferred to a bona fide purchaser. (b) For purposes of this subsection (1), in the absence of a finding of a contrary intent, joinder in the filing of a gift tax return does not constitute consent or joinder. (c) Any life insurance maintained pursuant to a marriage dissolution settlement agreement or court order or any distribution from a plan qualified under section 401 (a) of the federal "Internal Revenue Code of 1986", as amended, is excluded from the decedent's nonprobate transfers to others to the extent such items are payable to a person other than the surviving spouse. (d) Life insurance, accident insurance, pension, profit sharing, retirement, and other benefit plans payable to persons other than the decedent's surviving spouse or the decedent's estate are excluded from the augmented estate. Colorado Revised Statutes 2019 Page 192 of 600 Uncertified Printout (e) Any completed transfers made by the decedent prior to July 1, 1974, are excluded from the decedent's nonprobate transfers to others. (f) Any fractional interest in real property held in joint tenancy with the right of survivorship, if such joint tenancy was created by a donative transfer by someone other than the decedent or the surviving spouse, is excluded from the augmented estate. (2) Valuations. The value of property: (a) Included in the augmented estate under section 15-11-205, 15-11-206, or 15-11-207 is reduced in each category by enforceable claims against the included property; and (b) Includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal social security system. (3) Overlapping application - no double inclusion. In case of overlapping application to the same property of the provisions of section 15-11-205, 15-11-206, or 15-11-207, the property is included in the augmented estate under the provision yielding the highest value and under only one overlapping provision if they all yield the same value. Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1227, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-202 (3) as it existed prior to 2014. 15-11-209. Sources from which elective-share payable. (1) Elective-share amount only. (a) In a proceeding for an elective-share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others: (I) Amounts included in the augmented estate under section 15-11-204 (the net probate estate) which pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under section 15-11-206; and (II) The marital-property portion of amounts included in the augmented estate under section 15-11-207 (the spouse's property). (b) For the purposes of this subsection (1), if the surviving spouse disclaims any property, including interests in trust created by the decedent, such property shall not be applied under this subsection (1) to the extent that such property passes to a person other than the surviving spouse. (2) Marital-property portion. The marital-property portion under subparagraph (II) of paragraph (a) of subsection (1) of this section is computed by multiplying the value of the amounts included in the augmented estate under section 15-11-207 by the percentage of the augmented estate set forth in the schedule in section 15-11-203 (2) appropriate to the length of time the spouse and the decedent were married to each other. (3) Unsatisfied balance - order of contribution. If, after the application of subsection (1) of this section, the elective-share amount is not fully satisfied or the surviving spouse is entitled to a supplemental elective-share amount: Colorado Revised Statutes 2019 Page 193 of 600 Uncertified Printout (a) Amounts included in the decedent's net probate estate after application of subsection (1) of this section and in the decedent's nonprobate transfers to others described in section 15-11205 (3)(a)(during the marriage and the two-year period next preceding the decedent's death, the decedent's interest terminated and the property was transferred to someone other than the spouse), and in section 15-11-205 (3)(c)(any transfer during the same two-year period but only to the extent the transfer exceeded the applicable gift tax annual exclusion) are applied first to satisfy the unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The decedent's net probate estate and that portion of the decedent's nonprobate transfers to others are so applied that liability for the unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is apportioned among the recipients of the decedent's net probate estate and of that portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein. (b) If, after the application of subsection (1) of this section and paragraph (a) of this subsection (3), the elective-share or supplemental elective-share amount is not fully satisfied, the remaining portion of the decedent's nonprobate transfers to others is so applied that liability for the unsatisfied balance of the elective-share or supplemental elective-share amount is apportioned among the recipients of that remaining portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein. (4) Unsatisfied balance treated as general pecuniary devise. The unsatisfied balance of the elective-share or supplemental elective-share amount as determined under subsection (3) of this section is treated as a general pecuniary devise for purposes of section 15-12-904, but interest shall commence to run one year after determination of the elective share amount by the court. This subsection (4) applies only to estates of decedents who die on or after August 6, 2014. Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1228, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-203 as it existed prior to 2014. 15-11-210. Personal liability of recipients. (1) Only original recipients of the decedent's nonprobate transfers to others, and the donees of the recipients of the decedent's nonprobate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse's electiveshare or supplemental elective-share amount. A person liable to make a contribution may choose to give up the proportional part of the decedent's nonprobate transfers to him or her or to pay the value of the amount for which he or she is liable. (2) If any section or any part of any section of this part 2 is preempted by any federal law other than the federal "Employee Retirement Income Security Act of 1974", as amended, with respect to a payment, an item of property, or any other benefit included in the decedent's nonprobate transfers to others, a person, who, not for value, receives the payment, item of property, or any other benefit is obligated to return that payment, item of property, or benefit or is personally liable for the amount of that payment or the value of that item of property or benefit, as provided in section 15-11-209, to the person who would have been entitled to it were that section or part of that section not preempted. Colorado Revised Statutes 2019 Page 194 of 600 Uncertified Printout (3) A bona fide purchaser who purchases property from a recipient or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this part 2 to return the payment, item of property, or benefit nor liable under this part 2 for the amount of the payment or the value of the item of property or benefit. Source: L. 2014: Entire part R, (HB14-1322), ch. 296, p. 1229, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-204 as it existed prior to 2014. 15-11-211. Proceeding for elective-share - time limit. (1) Except as provided in subsection (2) of this section, the election must be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective-share within nine months after the date of the decedent's death or within six months after the probate of the decedent's will, whichever limitation later expires. The surviving spouse must give written notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective-share. (2) Within nine months after the decedent's death, the surviving spouse may petition the court for an extension of time for making an election. If, within nine months after the decedent's death, the spouse gives notice of the petition to all persons interested in the decedent's nonprobate transfers to others, the court, for cause shown by the surviving spouse, may extend the time for election. (3) If the spouse makes an election by filing a petition for the elective-share more than nine months after the decedent's death, the decedent's nonprobate transfers to others are not included within the augmented estate unless the spouse had filed a petition for extension prior to the expiration of the nine-month period and the court granted the extension. (4) The surviving spouse may withdraw his or her demand for an elective-share at any time before entry of a final determination by the court. Written notice of such withdrawal must be given to persons interested in the estate and the distributees and recipients of portions of the augmented estate whose interests may be adversely affected by the taking of the elective-share. (5) After notice and hearing, the court shall determine the elective-share and supplemental elective-share amounts and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under sections 15-11-209 and 15-11210. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he or she would have been under sections 1511-209 and 15-11-210 had relief been secured against all persons subject to contribution. (6) An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions. Colorado Revised Statutes 2019 Page 195 of 600 Uncertified Printout Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1230, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-205 as it existed prior to 2014. 15-11-212. Right of election personal to surviving spouse - incapacitated surviving spouse. (1) Surviving spouse must be living at time of election. The right of election may be exercised only by a surviving spouse who is living when the petition for the elective-share is filed in the court under section 15-11-211. If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse's behalf by his or her conservator, guardian, or agent under the authority of a power of attorney. (2) Incapacitated surviving spouse. If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the court must set aside that portion of the elective-share and supplemental elective-share amounts due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others under section 15-11-209 (1) and (3) and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection (2), an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee must administer the trust in accordance with the following terms and such additional terms as the court determines appropriate: (a) Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse's support, without court order but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need; (b) During the surviving spouse's incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust, but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination; and (c) Upon the surviving spouse's death, the trustee shall transfer the unexpended trust property in the following order: (I) Under the residuary clause, if any, of the will of the predeceased spouse against whom the elective-share was taken, as if that predeceased spouse died immediately after the surviving spouse; or (II) To that predeceased spouse's heirs under section 15-11-711. Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1231, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-206 as it existed prior to 2014. 15-11-213. Waiver of right to elect and of other rights. (1) Any affirmation, modification, or waiver of a marital right or obligation, as defined in section 14-2-302, C.R.S., made on or after July 1, 2014, is unenforceable unless the affirmation, modification, or waiver is Colorado Revised Statutes 2019 Page 196 of 600 Uncertified Printout contained in a premarital or marital agreement, as defined in section 14-2-302, C.R.S., that is enforceable under part 3 of article 2 of title 14, C.R.S. (2) Any affirmation, modification, or waiver of a marital right or obligation made before July 1, 2014, is governed by the law in effect at the time the affirmation, modification, or waiver was made. Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1232 , § 2, effective August 6. Editor's note: This section is similar to former § 15-11-207 as it existed prior to 2014. 15-11-214. Protection of payors and other third parties. (1) Although under this part 2, a payment, item of property, or other benefit is included in the decedent's nonprobate transfers to others, a payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument or for having taken any other action in good-faith reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice from the surviving spouse or the spouse's representative of an intention to file a petition for the elective-share or that a petition for the elective-share has been filed. A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice of an intention to file a petition for the elective-share or that a petition for the elective-share has been filed. Any form or service of notice other than that described in subsection (2) of this section is not sufficient to impose liability on a payor or other third party for actions taken pursuant to the governing instrument. (2) A written notice of intention to file a petition for the elective-share or that a petition for the elective-share has been filed must be mailed to the payor's or other third party's main office or home by registered or certified mail with return receipt requested or served upon the payor or other third party in the same manner as a summons in a civil action. Notice to a sales representative of the payor or other third party does not constitute notice to the payor or other third party. (3) Upon receipt of a written notice of intention to file a petition for the elective-share or that a petition for the elective-share has been filed, a payor or other third party may pay any amount owed or transfer to or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The availability of such actions under this section does not prevent the payor or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payor or other third party shall file with the court a copy of the written notice received by the payor or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payor or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property even Colorado Revised Statutes 2019 Page 197 of 600 Uncertified Printout if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payor or other third party discharges the payor or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court. (4) The court shall hold the funds or item of property and, upon its determination under section 15-11-211 (5), shall order disbursement in accordance with the determination. If no petition is filed in the court within the specified time under section 15-11-211 (1), or, if filed, the demand for an elective-share is withdrawn under section 15-11-211 (4), the court shall order disbursement to the designated beneficiary. A filing fee, if any, may be charged upon disbursement either to the recipient or against the funds or property on deposit with the court in the discretion of the court. Payments or transfers to the court or deposits made into the court discharge the payor or other third party from all claims for amounts so paid or the value of property so transferred or deposited. (5) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section. Source: L. 2014: Entire part R&RE, (HB 14-1322), ch. 296, p. 1232, § 2, effective August 6. Editor's note: This section is similar to former § 15-11-208 as it existed prior to 2014. PART 3 SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS Cross references: For clarification of the term "surviving spouse", see § 15-11-802. 15-11-301. Entitlement of spouse; premarital will. (1) If a testator's surviving spouse married the testator after the testator executed his or her will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate he or she would have received if the testator had died intestate as to that portion of the testator's estate, if any, that neither is devised outright to nor in trust for the benefit of a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is so devised to a descendant of such a child, or passes under section 15-11-603 or 15-11-604 to such a child or to a descendant of such a child, unless: (a) It appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse; (b) The will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or (c) The testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence. Colorado Revised Statutes 2019 Page 198 of 600 Uncertified Printout (2) In satisfying the share provided by this section, devises made by the will to the testator's surviving spouse, if any, are applied first, and other devises, other than a devise outright to or in trust for the benefit of a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or substitute gift under section 15-11-603 or 15-11-604 to a descendant of such a child, abate as provided in section 15-12-902. Source: L. 94: Entire part R&RE, p. 993, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-301 as it existed prior to 1995. 15-11-302. Omitted children. (1) Except as provided in subsection (2) of this section, if a testator fails to provide in his or her will for any of his or her children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as follows: (a) If the testator had no child living when he or she executed the will, an omitted afterborn or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will. (b) If the testator has one or more children living when he or she executed the will, and the will devised property or an interest in property to one or more of the then living children, an omitted after-born or after-adopted child is entitled to share in the testator's estate as follows: (I) The portion of the testator's estate in which the omitted after-born or after-adopted child is entitled to share is limited to devises made to the testator's then living children under the will. (II) The omitted after-born or after-adopted child is entitled to receive the share of the testator's estate, as limited in subparagraph (I) of this paragraph (b), that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child. (III) To the extent feasible, the interest granted an omitted after-born or after-adopted child under this section shall be of the same character, whether equitable or legal, present or future, as that devised to the testator's then living children under the will. (IV) In satisfying a share provided by this paragraph (b), devises to the testator's children who were living when the will was executed abate ratably. In abating the devises of the then living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator. (2) Neither paragraph (a) nor (b) of subsection (1) of this section applies if: (a) It appears from the will that the omission was intentional; or (b) The testator provided for the omitted after-born or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence. Colorado Revised Statutes 2019 Page 199 of 600 Uncertified Printout (3) If at the time of execution of the will the testator fails to provide in his or her will for a living child solely because he or she believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child. (4) In satisfying a share provided by paragraph (a) of subsection (1) of this section, devises made by the will abate under section 15-12-902. Source: L. 94: Entire part R&RE, p. 993, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-302 as it existed prior to 1995. PART 4 EXEMPT PROPERTY AND ALLOWANCES Cross references: For clarification of the term "surviving spouse", see § 15-11-802. Law reviews: For article, "Estate Planning Tools for Second Marriages", see 45 Colo. Law. 45 (Dec. 2016). 15-11-401. Applicable law. This part 4 applies to the estate of a decedent who dies domiciled in this state. Rights to exempt property and a family allowance for a decedent who dies not domiciled in this state are governed by the law of the decedent's domicile at death. Source: L. 94: Entire part R&RE, p. 995, § 3, effective July 1, 1995. L. 96: Entire section amended, p. 657, § 5, effective July 1. 15-11-402. Homestead. The provisions of sections 38-41-201 and 38-41-204, C.R.S., provide for a homestead exemption but shall not create an allowance for the surviving spouse or minor children. A personal representative's obligation to distribute property as an exempt property allowance under section 15-11-403, to pay money as a family allowance under section 15-11-404, or to distribute property to devisees, heirs, or beneficiaries shall not be considered a debt, contract, or civil obligation, as referred to under sections 38-41-201 and 38-41-202, C.R.S. Source: L. 94: Entire part R&RE, p. 995, § 3, effective July 1, 1995. 15-11-403. Exempt property. (1) (a) Prior to January 1, 2012, the decedent's surviving spouse is entitled to exempt property from the estate in the form of cash in the amount of or other property of the estate in the value of twenty-six thousand dollars in excess of any security interests therein. If there is no surviving spouse, the decedent's dependent children are entitled jointly to the same exempt property. Rights to exempt property have priority over all claims against the estate, except claims for the costs and expenses of administration, and reasonable funeral and burial, interment, or cremation expenses, which shall be paid in the priority and manner set forth in section 15-12-805. The right to exempt property shall abate as necessary to permit payment of the family allowance. These rights are in addition to any benefit or share Colorado Revised Statutes 2019 Page 200 of 600 Uncertified Printout passing to the surviving spouse or dependent children by the decedent's will, unless otherwise provided, by intestate succession, or by way of elective-share. (b) On and after January 1, 2012, the decedent's surviving spouse is entitled to exempt property from the estate in the form of cash in the amount of or other property of the estate in the value of thirty thousand dollars in excess of any security interests therein. If there is no surviving spouse, the decedent's dependent children are entitled jointly to the same exempt property. Rights to exempt property have priority over all claims against the estate, except claims for the costs and expenses of administration, and reasonable funeral and burial, interment, or cremation expenses, which shall be paid in the priority and manner set forth in section 15-12-805. The right to exempt property shall abate as necessary to permit payment of the family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or dependent children by the decedent's will, unless otherwise provided, by intestate succession, or by way of elective-share. (2) The dollar amount stated in paragraph (a) or (b) of subsection (1) of this section shall be increased or decreased based on the cost of living adjustment as calculated and specified in section 15-10-112; except that, when the increase in the dollar amount stated in paragraph (b) of subsection (1) of this section, as enacted in Senate Bill 11-016, enacted in 2011, takes effect, the next regularly scheduled cost of living adjustment will be suspended for one year. Source: L. 94: Entire part R&RE, p. 995, § 3, effective July 1, 1995. L. 96: Entire section amended, p. 657, § 6, effective July 1. L. 2002: Entire section amended, p. 652, § 5, effective July 1. L. 2009: Entire section amended, (HB 09-1287), ch. 310, p. 1682, § 10, effective July 1, 2010. L. 2011: Entire section amended, (SB 11-016), ch. 77, p. 211, § 1, effective August 10. Editor's note: This section is similar to former § 15-11-402 as it existed prior to 1995. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-11-404. Family allowance. (1) In addition to the right to exempt property, the decedent's surviving spouse and minor children who the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children, or persons having their care and custody. If a minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or his or her guardian or other person having the child's care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims except claims for the costs and expenses of administration, and reasonable funeral and burial, interment, or cremation expenses, which shall be paid in the priority and manner set forth in section 15-12-805. Colorado Revised Statutes 2019 Page 201 of 600 Uncertified Printout (2) The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective-share. The death of any person entitled to a family allowance terminates the right to receive an allowance for any period arising after his or her death, but does not affect the right of his or her estate to recover the unpaid allowance for periods prior to his or her death. Source: L. 94: Entire part R&RE, p. 996, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-403 as it existed prior to 1995. 15-11-405. Source, determination, and documentation. (1) (a) (I) If the estate is otherwise sufficient, property specifically devised or disposed of by memorandum under section 15-11-513 to any person other than a person entitled to exempt property may not be used to satisfy rights to exempt property. Subject to this restriction, the surviving spouse, the guardians of minor children, or dependent children who are adults may select property of the estate as their exempt property. The personal representative may make these selections if the surviving spouse, the dependent children, or the guardians of the minor children are unable or fail to do so within a reasonable time or there is no guardian of a minor child. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as exempt property allowance. Prior to January 1, 2012, the personal representative may determine the family allowance in a lump sum not exceeding twenty-four thousand dollars or periodic installments not exceeding two thousand dollars per month for one year and may disburse funds of the estate in payment of the family allowance. The personal representative or an interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which may provide a family allowance other than that which the personal representative determined or could have determined. (II) If the estate is otherwise sufficient, property specifically devised or disposed of by memorandum under section 15-11-513 to any person other than a person entitled to exempt property may not be used to satisfy rights to exempt property. Subject to this restriction, the surviving spouse, the guardians of minor children, or dependent children who are adults may select property of the estate as their exempt property. The personal representative may make these selections if the surviving spouse, the dependent children, or the guardians of the minor children are unable or fail to do so within a reasonable time or there is no guardian of a minor child. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as exempt property allowance. On and after January 1, 2012, the personal representative may determine the family allowance in a lump sum not exceeding thirty thousand dollars or periodic installments not exceeding two thousand five hundred dollars per month for one year and may disburse funds of the estate in payment of the family allowance. The personal representative or an interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which may provide a family allowance other than that which the personal representative determined or could have determined. Colorado Revised Statutes 2019 Page 202 of 600 Uncertified Printout (b) The dollar amount stated in subparagraph (I) or (II) of paragraph (a) of this subsection (1) shall be increased or decreased based on the cost of living adjustment as calculated and specified in section 15-10-112; except that, when the increase in the dollar amount stated in subparagraph (II) of paragraph (a) of this subsection (1), as enacted in Senate Bill 11-016, enacted in 2011, takes effect, the next regularly scheduled cost of living adjustment will be suspended for one year. (2) If the right to an elective-share is exercised on behalf of a surviving spouse who is an incapacitated person, the personal representative may add any unexpended portions payable under the exempt property and family allowance to the trust established under section 15-11-206 (2). (3) No exempt property or family allowance shall be payable unless the person entitled to payment thereof requests such payment within six months after the first publication of notice to creditors for filing claims which arose before the death of the decedent, or within one year after the date of death, whichever time limitation first expires. The court may extend the time for presenting such request as it sees fit for cause shown by the person entitled to payment before the time limitation has expired; except that the time for presenting the request shall not be extended beyond two years after the date of death. The request shall be made to the personal representative, or, if none is appointed, to any other person having possession of the decedent's assets. A request on behalf of a minor or dependent child may be made by the child's guardian or other person having his or her care and custody. Source: L. 94: Entire part R&RE, p. 996, § 3, effective July 1, 1995. L. 96: (1) amended, p. 658, § 7, effective July 1. L. 2002: (1) amended, p. 652, § 6, effective July 1. L. 2009: (1) amended, (HB 09-1287), ch. 310, p. 1682, § 11, effective July 1, 2010. L. 2011: (1) amended, (SB 11-016), ch. 77, p. 212, § 2, effective August 10. Editor's note: This section is similar to former § 15-11-404 as it existed prior to 1995. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. PART 5 WILLS AND WILL CONTRACTS AND CUSTODY AND DEPOSIT OF WILLS 15-11-501. Who may make a will. An individual eighteen or more years of age who is of sound mind may make a will. Source: L. 94: Entire part R&RE, p. 997, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-501 as it existed prior to 1995. 15-11-502. Execution - witnessed or notarized wills - holographic wills. (1) Except as otherwise provided in subsection (2) of this section and in sections 15-11-503, 15-11-506, and 15-11-513, a will shall be: Colorado Revised Statutes 2019 Page 203 of 600 Uncertified Printout (a) In writing; (b) Signed by the testator, or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (c) Either: (I) Signed by at least two individuals, either prior to or after the testator's death, each of whom signed within a reasonable time after he or she witnessed either the testator's signing of the will as described in paragraph (b) of this subsection (1) or the testator's acknowledgment of that signature or acknowledgment of the will; or (II) Acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. (2) A will that does not comply with subsection (1) of this section is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting. (3) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting. (4) For purposes of this section, "conscious presence" requires physical proximity to the testator but not necessarily within testator's line of sight. (5) For purposes of this part 5, "will" does not include a designated beneficiary agreement that is executed pursuant to article 22 of this title. Source: L. 94: Entire part R&RE, p. 997, § 3, effective July 1, 1995. L. 2001: (1)(c) amended, p. 886, § 1, effective June 1. L. 2009: (1) amended, (HB 09-1287), ch. 310, p. 1683, § 12, effective July 1, 2010. L. 2010: (5) added, (SB 10-199), ch. 374, p. 1750, § 9, effective July 1. Editor's note: This section is similar to former §§ 15-11-502 and 15-11-503 as they existed prior to 1995. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-11-503. Writings intended as wills. (1) Although a document, or writing added upon a document, was not executed in compliance with section 15-11-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (a) The decedent's will; (b) A partial or complete revocation of the will; (c) An addition to or an alteration of the will; or (d) A partial or complete revival of the decedent's formerly revoked will or a formerly revoked portion of the will. (2) Subsection (1) of this section shall apply only if the document is signed or acknowledged by the decedent as his or her will or if it is established by clear and convincing Colorado Revised Statutes 2019 Page 204 of 600 Uncertified Printout evidence that the decedent erroneously signed a document intended to be the will of the decedent's spouse. (3) Whether a document or writing is treated under this section as if it had been executed in compliance with section 15-11-502 is a question of law to be decided by the court, in formal proceedings, and is not a question of fact for a jury to decide. (4) Subsection (1) of this section shall not apply to a designated beneficiary agreement under article 22 of this title. Source: L. 94: Entire part R&RE, p. 998, § 3, effective July 1, 1995. L. 2001: Entire section amended, p. 886, § 2, effective June 1. L. 2010: (4) added, (SB 10-199), ch. 374, p. 1750, § 10, effective July 1. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-11-504. Self-proved will. (1) A will that is executed with attesting witnesses may be simultaneously executed, attested, and made self-proved by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal, in substantially the following form: I, ________, the testator, sign my name to this instrument this ____ day of ____, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence. ____________________________________ Testator We, _______, _______ the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as [his] [her] will and that [he] [she] signs it willingly (or willingly directs another to sign for [him] [her]), and that [he] [she] executes it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of us, in the conscious presence of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence. ____________________________________ Witness ____________________________________ Witness THE STATE OF __________________ Colorado Revised Statutes 2019 Page 205 of 600 Uncertified Printout COUNTY OF _____________________ Subscribed, sworn to and acknowledged before me by _____________, the testator, and subscribed and sworn to before me by ____________ and __________, witnesses, this _____ day of _____, ____. (SEAL) (SIGNED)____________________________________ ____________________________________ (Official capacity of officer) (2) A will that is executed with attesting witnesses may be made self-proved at any time after its execution by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached or annexed to the will in substantially the following form: THE STATE OF __________________ COUNTY OF _____________________ We, _____________, ____________, and _____________, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator's will and that [he] [she] had signed willingly (or willingly directed another to sign for [him] [her]), and that [he] [she] executed it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the conscious presence of the testator, signed the will as witness and that to the best of [his] [her] knowledge the testator was at that time eighteen years of age or older, of sound mind, and under no constraint or undue influence. ____________________________________ Testator ____________________________________ Witness ____________________________________ Witness Subscribed, sworn to, and acknowledged before me by subscribed and sworn to before me by and , witnesses, this , the testator, and day of , . (SEAL) (SIGNED)____________________________________ Colorado Revised Statutes 2019 Page 206 of 600 Uncertified Printout ____________________________________ (Official capacity of officer) (3) A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will if necessary to prove the will's due execution. Source: L. 94: Entire part R&RE, p. 998, § 3, effective July 1, 1995. L. 2001: (2) amended, p. 887, § 3, effective June 1. L. 2009: (1) and (2) amended, (HB 09-1287), ch. 310, p. 1683, § 13, effective July 1, 2010. Editor's note: This section is similar to former § 15-11-504 as it existed prior to 1995. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-11-505. Who may witness. (1) An individual generally competent to be a witness may act as a witness to a will. (2) The signing of a will by an interested witness does not invalidate the will or any provision of it. Source: L. 94: Entire part R&RE, p. 1000, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-505 as it existed prior to 1995. 15-11-506. Choice of law as to execution. A written will is valid if executed in compliance with section 15-11-502 or 15-11-503 or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where, at the time of execution or at the time of death, the testator is domiciled, has a place of abode, or is a national. Source: L. 94: Entire part R&RE, p. 1000, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-506 as it existed prior to 1995. 15-11-507. Revocation by writing or by act. (1) A will or any part thereof is revoked: (a) By executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or (b) By performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part of it or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this paragraph (b), "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a "revocatory act on the will", whether or not the burn, tear, or cancellation touched any of the words on the will. (2) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will. Colorado Revised Statutes 2019 Page 207 of 600 Uncertified Printout (3) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death. (4) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent. Source: L. 94: Entire part R&RE, p. 1000, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-507 as it existed prior to 1995. 15-11-508. Revocation by change of circumstances. Except as provided in sections 1511-803 and 15-11-804, a change of circumstances does not revoke a will or any part of it. Source: L. 94: Entire part R&RE, p. 1001, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-508 as it existed prior to 1995. 15-11-509. Revival of revoked will. (1) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under section 15-11-507 (1)(b), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed. (2) If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under section 15-11-507 (1)(b), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed. (3) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect. Source: L. 94: Entire part R&RE, p. 1001, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-509 as it existed prior to 1995. 15-11-510. Incorporation by reference. A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. Colorado Revised Statutes 2019 Page 208 of 600 Uncertified Printout Source: L. 94: Entire part R&RE, p. 1001, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-510 as it existed prior to 1995. 15-11-511. Testamentary additions to trusts. (1) A will may validly devise property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person, including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death. (2) Unless the testator's will provides otherwise, property devised to a trust described in subsection (1) of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and is administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death. (3) A revocation or termination of the trust before the death of the testator causes the devise to lapse, but exhaustion of trust corpus between the time of execution of the testator's will and the testator's death shall not constitute a lapse; a revocation or termination of the trust before the death of the testator shall not cause the devise to lapse, if the testator provides that, in such event, the devise shall constitute a devise to the trustee of the trust identified in the testator's will, and on the terms thereof, as they existed at the time of the execution of testator's will, or as they existed at the time of the revocation or termination of the trust, as the testator's will provides. Source: L. 94: Entire part R&RE, p. 1001, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-511 as it existed prior to 1995. 15-11-512. Events of independent significance. A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event. Source: L. 94: Entire part R&RE, p. 1002, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-512 as it existed prior to 1995. 15-11-513. Separate writing or memorandum identifying devise of certain types of tangible personal property. Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this Colorado Revised Statutes 2019 Page 209 of 600 Uncertified Printout section as evidence of the intended disposition, the writing shall be either in the handwriting of the testator or be signed by the testator and shall describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will. Source: L. 94: Entire part R&RE, p. 1002, § 3, effective July 1, 1995. L. 95: Entire section amended, p. 355, § 5, effective July 1. Editor's note: This section is similar to former § 15-11-513 as it existed prior to 1995. 15-11-514. Contracts concerning succession. A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after July 1, 1995, may be established only by (i) provisions of a will stating material provisions of the contract, (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or (iii) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills. Source: L. 94: Entire part R&RE, p. 1002, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-701 as it existed prior to 1995. 15-11-515. Deposit of will with court in testator's lifetime. A will may be deposited by the testator or the testator's agent with any court for safekeeping, under rules of the court. The will shall be sealed and kept confidential. During the testator's lifetime, a deposited will shall be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible and to ensure that it will be resealed and kept on deposit after the examination. Source: L. 94: Entire part R&RE, p. 1003, § 3, effective July 1, 1995. L. 96: Entire section amended, p. 658, § 8, effective July 1. Editor's note: This section is similar to former § 15-11-901 as it existed prior to 1995. 15-11-516. Duty of custodian of will; lodging of will after death; transfer of lodged will; liability. (1) Within ten days after a testator's death or as soon thereafter as the death becomes known to the custodian of an instrument purporting to be the testator's will, the custodian shall deliver the will to the court having probate jurisdiction in the Colorado county where the decedent resided or was domiciled at death for lodging in the records of such court. If the decedent was not a Colorado resident or domiciliary, the custodian shall deliver the will to the court having probate jurisdiction where the decedent was a resident or domiciliary at death, if known to the custodian, but if such residence or domicile is not known, to the court having probate jurisdiction in any Colorado county where property of the decedent was located at death. Colorado Revised Statutes 2019 Page 210 of 600 Uncertified Printout If the domicile, residence, and location of property are unknown to the custodian, or if the court having probate jurisdiction outside of Colorado refuses to accept delivery of the will, the custodian shall deliver the will to the court having probate jurisdiction in the Colorado county where the will was located. Upon being informed of the testator's death, a court holding a deposited will shall lodge the will in its records. (2) Upon the filing of a petition or application showing appropriate venue to be in another state or in another Colorado county, the court shall order the lodged will transferred to the court having probate jurisdiction in that state or county. Any person who willfully fails to deliver an instrument purporting to be a will is liable to any person aggrieved for the damages that may be sustained by the failure. (3) Any person who willfully refuses or fails to deliver an instrument purporting to be a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court. Source: L. 94: Entire part R&RE, p. 1003, § 3, effective July 1, 1995. L. 96: Entire section amended, p. 658, § 9, effective July 1. Editor's note: This section is similar to former § 15-11-902 as it existed prior to 1995. 15-11-517. Penalty clause for contest. A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings. Source: L. 94: Entire part R&RE, p. 1003, § 3, effective July 1, 1995. PART 6 RULES OF CONSTRUCTION APPLICABLE ONLY TO WILLS 15-11-601. Scope. In the absence of a finding of a contrary intention, the rules of construction in this part 6 control the construction of a will. In the absence of a finding of a contrary intention, the provisions of sections 15-11-603 and 15-11-604 shall apply to wills and codicils executed or republished or reaffirmed on or after July 1, 1995, and prior law (sections 15-11-605 and 15-11-606) shall apply to wills and codicils executed prior to July 1, 1995, and not republished or reaffirmed on or after that date. In the process of determining whether a contrary intention exists, the rules of construction of this part 6 shall not apply. Source: L. 94: Entire part R&RE, p. 1003, § 3, effective July 1, 1995. L. 95: Entire section amended, p. 356, § 6, effective July 1. 15-11-602. Will may pass all property and after-acquired property. A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator's death. Source: L. 94: Entire part R&RE, p. 1003, § 3, effective July 1, 1995. Colorado Revised Statutes 2019 Page 211 of 600 Uncertified Printout Editor's note: This section is similar to former § 15-11-604 as it existed prior to 1995. 15-11-603. Antilapse; deceased devisee; class gifts. (1) Definitions. As used in this section, unless the context otherwise requires: (a) "Alternative devise" means a devise that is expressly created by the will and, under the terms of the will, can take effect instead of another devise on the happening of one or more events, including survival of the testator or failure to survive the testator, whether an event is expressed in condition-precedent, condition-subsequent, or any other form. A residuary clause constitutes an alternative devise with respect to a nonresiduary devise only if the will specifically provides that, upon lapse or failure, the nonresiduary devise, or nonresiduary devises in general, pass under the residuary clause. (b) "Class member" includes an individual who fails to survive the testator but who would have taken under a devise in the form of a class gift had he or she survived the testator. (c) "Devise" includes an alternative devise, a devise in the form of a class gift, and an exercise of a power of appointment. (d) "Devisee" includes (i) a class member if the devise is in the form of a class gift, (ii) the beneficiary of a trust but not the trustee, (iii) an individual or class member who was deceased at the time the testator executed his or her will as well as an individual or class member who was then living but who failed to survive the testator, and (iv) an appointee under a power of appointment exercised by the testator's will. (e) (Reserved) (f) "Surviving devisee" or "surviving descendant" means a devisee or a descendant who neither predeceased the testator nor is deemed to have predeceased the testator under section 1511-702. (g) "Testator" includes the donee of a power of appointment if the power is exercised in the testator's will. (2) Substitute gift. If a devisee fails to survive the testator and is a grandparent or a descendant of a grandparent of either the testator or the donor of a power of appointment exercised by the testator's will, the following apply: (a) Except as provided in paragraph (d) of this subsection (2), if the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee's surviving descendants. They take per capita at each generation the property to which the devisee would have been entitled had the devisee survived the testator. (b) Except as provided in paragraph (d) of this subsection (2), if the devise is in the form of a class gift, other than a devise to "issue", "descendants", "heirs of the body", "heirs", "next of kin", "relatives", or "family", or a class described by language of similar import, a substitute gift is created in the deceased devisee's or devisees' surviving descendants. The property to which the devisees would have been entitled had all of them survived the testator passes to the surviving devisees and the surviving descendants of the deceased devisees. Each surviving devisee takes the share to which he or she would have been entitled had the deceased devisees survived the testator. Each deceased devisee's surviving descendants who are substituted for the deceased devisee takes per capita at each generation the share to which the deceased devisee would have been entitled had the deceased devisee survived the testator. For the purposes of this paragraph (b), "deceased devisee" means a class member who failed to survive the testator and left one or more surviving descendants. Colorado Revised Statutes 2019 Page 212 of 600 Uncertified Printout (c) For purposes of this part 6, words of survivorship, such as in a devise to an individual "if he survives me" or in a devise to "my surviving children", are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section. The use of language such as "and if he does not survive me the gift shall lapse" or "to A and not to A's descendants" shall be sufficient indication of an intent contrary to the application of this section. (d) If the will creates an alternative devise with respect to a devise for which a substitute gift is created by paragraph (a) or (b) of this subsection (2), the substitute gift is superseded by the alternative devise only if an expressly designated devisee of the alternative devise is entitled to take under the will. (e) Unless the language creating a power of appointment expressly excludes the substitution of the descendants of an appointee for the appointee, a surviving descendant of a deceased appointee of a power of appointment can be substituted for the appointee under this section, whether or not the descendant is an object of the power. (3) Dispositions under separate writing. The provisions of this section shall not apply to dispositions of tangible personal property made under section 15-11-513. (4) More than one substitute gift; which one takes. If, under subsection (2) of this section, substitute gifts are created and not superseded with respect to more than one devise and the devises are alternative devises, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows: (a) Except as provided in paragraph (b) of this subsection (4), the devised property passes under the primary substitute gift. (b) If there is a younger-generation devise, the devised property passes under the younger-generation substitute gift and not under the primary substitute gift. (c) In this subsection (4): (I) "Primary devise" means the devise that would have taken effect had all the deceased devisees of the alternative devises who left surviving descendants survived the testator. (II) "Primary substitute gift" means the substitute gift created with respect to the primary devise. (III) "Younger-generation devise" means a devise that: (A) Is to a descendant of a devisee of the primary devise; (B) Is an alternative devise with respect to the primary devise; (C) Is a devise for which a substitute gift is created; and (D) Would have taken effect had all the deceased devisees who left surviving descendants survived the testator except the deceased devisee or devisees of the primary devise. (IV) "Younger-generation substitute gift" means the substitute gift created with respect to the younger-generation devise. Source: L. 94: Entire part R&RE, p. 1004, § 3, effective July 1, 1995. L. 95: (2)(a) and (2)(b) amended, p. 356, § 7, effective July 1. Editor's note: This section is similar to former § 15-11-605 as it existed prior to 1995. Colorado Revised Statutes 2019 Page 213 of 600 Uncertified Printout 15-11-604. Failure of testamentary provision. (1) Except as provided in section 1511-603, a devise, other than a residuary devise, that fails for any reason becomes a part of the residue. (2) Except as provided in section 15-11-603, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue. Source: L. 94: Entire part R&RE, p. 1006, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-606 as it existed prior to 1995. 15-11-605. Increase in securities; accessions. (1) If a testator executes a will that devises securities and the testator then owned securities that meet the description in the will, the devise includes additional securities owned by the testator at death to the extent the additional securities were acquired by the testator after the will was executed as a result of the testator's ownership of the described securities and are securities of any of the following types: (a) Securities of the same organization acquired by reason of action initiated by the organization or any successor, related, or acquiring organization, excluding any acquired by exercise of purchase options; (b) Securities of another organization acquired as a result of a merger, consolidation, reorganization, or other distribution by the organization or any successor, related, or acquiring organization; or (c) Securities of the same organization acquired as a result of a plan of reinvestment. (2) Distributions in cash before death with respect to a described security are not part of the devise. Source: L. 94: Entire part R&RE, p. 1006, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-607 as it existed prior to 1995. 15-11-606. Nonademption of specified devises - unpaid proceeds of sale, condemnation, or insurance - sale by conservator or agent. (1) A specific devisee has a right to the specifically devised property in the testator's estate at death and: (a) Any balance of the purchase price, together with any security agreement, owing from a purchaser to the testator at death by reason of sale of the property; (b) Any amount of a condemnation award for the taking of the property unpaid at death; (c) Any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property; (d) Property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically devised obligation; (e) Real or tangible personal property owned by the testator at death which the testator acquired as a replacement for specifically devised real or tangible personal property; and (f) If not covered by any of paragraphs (a) to (e) of this subsection (1), a general pecuniary devise equal to the value as of its date of disposition of other specifically devised Colorado Revised Statutes 2019 Page 214 of 600 Uncertified Printout 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 at the time the will was made, the date of disposition, or otherwise, the testator did not intend ademption of the devise. (2) If specifically devised property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, or if a condemnation award, insurance proceeds, or recovery for injury to the property is paid to a conservator or to an agent acting within the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery. (3) The right of a specific devisee under subsection (2) of this section is reduced by any right the devisee has under subsection (1) of this section. (4) For the purposes of the references in subsection (2) of this section to a conservator, subsection (2) of this section does not apply if after the sale, mortgage, condemnation, casualty, or recovery it was adjudicated that the testator's incapacity ceased and the testator survived the adjudication by one year. (5) For the purposes of the references in subsection (2) of this section to an agent acting within the authority of a durable power of attorney for an incapacitated principal, (i) "Incapacitated principal" means a principal who is an incapacitated person, (ii) no adjudication of incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are presumed to be for an incapacitated principal. Source: L. 94: Entire part R&RE, p. 1007, § 3, effective July 1, 1995. L. 2014: (1)(f) amended, (HB 14-1322), ch. 296, p. 1233, § 3, effective August 6. Editor's note: This section is similar to former § 15-11-608 as it existed prior to 1995. 15-11-607. Nonexoneration. A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts. Source: L. 94: Entire part R&RE, p. 1008, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-609 as it existed prior to 1995. 15-11-608. Exercise of power of appointment - repeal. (Repealed) Source: L. 94: Entire part R&RE, p. 1008, § 3, effective July 1, 1995. L. 2014: (2) added by revision, (HB 14-1353), ch. 209, pp. 782, 783, §§ 2, 5. Editor's note: (1) This section was similar to former § 15-11-610 as it existed prior to 1995. (2) Subsection (2) provided for the repeal of this section, effective July 1, 2015. (See L. 2014, pp. 782, 783.) Colorado Revised Statutes 2019 Page 215 of 600 Uncertified Printout 15-11-609. Ademption by satisfaction. (1) Property a testator gave in his or her lifetime to a person is treated as a satisfaction of a devise in whole or in part, only if (i) the will provides for deduction of the gift, (ii) the testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise, or (iii) the devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise. (2) For purposes of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or at the testator's death, whichever occurs first. (3) If the devisee fails to survive the testator, the gift is treated as a full or partial satisfaction of the devise, as appropriate, in applying sections 15-11-603 and 15-11-604, unless the testator's contemporaneous writing provides otherwise. Source: L. 94: Entire part R&RE, p. 1008, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-612 as it existed prior to 1995. PART 7 RULES OF CONSTRUCTION APPLICABLE TO WILLS AND OTHER GOVERNING INSTRUMENTS 15-11-701. Scope. For the purposes of this part 7, the term "governing instrument" shall be as defined in section 15-10-201 (22); except: (1) "Governing instrument" shall not include a deed that transfers any interest in real property; however, section 15-11-712 shall apply to such deeds. (2) As the application of a particular section is limited by its terms to a specific type of provision or governing instrument. In the absence of a finding of a contrary intention, the rules of construction in this part 7 control the construction of a governing instrument executed or republished or reaffirmed on or after July 1, 1995, and the rules of construction under prior law control the construction of a governing instrument executed prior to July 1, 1995, and not a governing instrument republished or reaffirmed after that date. In the process of determining whether a contrary intention exists, the rules of construction of this part 7 shall not apply. (3) In the absence of a finding of a contrary intention, the rules of construction in section 15-11-705 apply to a governing instrument executed or republished or reaffirmed on or after July 1, 2010, and the rules of construction under section 15-11-705, as it existed prior to July 1, 2010, apply to a governing instrument executed prior to July 1, 2010, and not republished or reaffirmed after that date. Source: L. 94: Entire part R&RE, p. 1009, § 3, effective July 1, 1995. L. 95: (2) amended, p. 357, § 8, effective July 1. L. 2010: (1) amended and (3) added, (SB 10-199), ch. 374, p. 1750, § 11, effective July 1. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. Colorado Revised Statutes 2019 Page 216 of 600 Uncertified Printout 15-11-702. Requirement of survival by one hundred twenty hours. (1) Requirement of survival by one hundred twenty hours under probate code. For the purposes of this code, except as provided in subsection (4) of this section, an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by one hundred twenty hours is deemed to have predeceased the event. (2) Requirement of survival by one hundred twenty hours under other governing instrument. Except as provided in subsection (4) of this section, for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by one hundred twenty hours is deemed to have predeceased the event. (3) Co-owners with right of survivorship; requirement of survival by one hundred twenty hours. Except as provided in subsection (4) of this section, if (i) it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by one hundred twenty hours, one-half of the property passes as if one had survived by one hundred twenty hours and one-half as if the other had survived by one hundred twenty hours, and (ii) there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by one hundred twenty hours, the property passes in the proportion that one bears to the whole number of co-owners. For the purposes of this subsection (3), "co-owners with right of survivorship" includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles one or more to the whole of the property or account on the death of one or more of the others. (4) Exceptions. Survival by one hundred twenty hours is not required if: (a) The governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and if that language is operable under the facts of the case; (b) The governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event by a specified period; but survival of the event or the specified period shall be established by clear and convincing evidence; (c) The imposition of a one-hundred-twenty-hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity under section 15-11-1102 (1)(a), (2)(a), or (3)(a) or section 15-11-1102.5 (1)(b)(I), (1)(b)(II), (1)(b)(III), (2)(b)(I)(A), (2)(b)(II)(A), or (2)(b)(III)(A), or to become invalid under section 15-11-1102 (1)(b), (2)(b), or (3)(b) or section 15-11-1102.5 (1)(b)(I), (1)(b)(II), or (1)(b)(III); but survival shall be established by clear and convincing evidence; or (d) The application of a one-hundred-twenty-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition; but survival shall be established by clear and convincing evidence. (5) Protection of payors and other third parties. (a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this section, is not entitled to the payment or item of property, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice as described in paragraph (b) of this subsection (5). A payor or Colorado Revised Statutes 2019 Page 217 of 600 Uncertified Printout other third party shall have no duty or obligation to inquire as to the application of the onehundred-twenty-hour survival or to seek any evidence with respect to any such survival. A payor or other third party is only liable for actions taken two or more business days after the payor or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this subsection (5) shall not be sufficient to impose liability on a payor or other third party for actions taken pursuant to the governing instrument. (b) The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that the beneficiary designated in the governing instrument failed to survive the decedent by one hundred twenty hours. The written notice shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Notice to a sales representative of the payor or other third party shall not constitute notice to the payor or other third party. (c) Upon receipt of the written notice described in paragraph (b) of this subsection (5), a payor or other third party may pay to the court any amount owed, or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payor or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payor or other third party shall file with the court a copy of the written notice received by the payor or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payor or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payor or other third party discharges the payor or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court. (d) The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. (e) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section. (6) Protection of bona fide purchasers; personal liability of recipient. (a) A person who purchases property for value and without notice or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, Colorado Revised Statutes 2019 Page 218 of 600 Uncertified Printout or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (b) If this section or any part of this section is preempted by federal law (other than the federal "Employee Retirement Income Security Act of 1974", as amended) with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted. Source: L. 94: Entire part R&RE, p. 1009, § 3, effective July 1, 1995. L. 2006: (4)(c) amended, p. 393, § 28, effective July 1. Editor's note: This section is similar to former § 15-11-601 as it existed prior to 1995. Cross references: For requirement that an heir survive a decedent by one hundred twenty hours, see § 15-11-104. 15-11-703. Choice of law as to meaning and effect of governing instrument. The meaning and legal effect of a governing instrument is determined by the local law of the state selected by the transferor in the governing instrument, unless the application of that law is contrary to the provisions relating to the elective-share described in part 2 of this article, the provisions relating to exempt property and allowances described in part 4 of this article, or any other public policy of this state otherwise applicable to the disposition. Source: L. 94: Entire part R&RE, p. 1012, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-602 as it existed prior to 1995. 15-11-704. Power of appointment; meaning of specific reference requirement repeal. (Repealed) Source: L. 94: Entire part R&RE, p. 1012, § 3, effective July 1, 1995. L. 2014: (2) added by revision, (HB 14-1353), ch. 209, pp. 782, 783, §§ 2, 5. Editor's note: Subsection (2) provided for the repeal of this section, effective July 1, 2015. (See L. 2014, pp. 782, 783.) 15-11-705. Class gifts construed to accord with intestate succession. (1) Definitions. In this section: (a) "Adoptee" has the meaning set forth in section 15-11-115. (b) "Child of assisted reproduction" has the meaning set forth in section 15-11-120. (c) "Distribution date" means the date when an immediate or postponed class gift takes effect in possession or enjoyment. Colorado Revised Statutes 2019 Page 219 of 600 Uncertified Printout (d) "Functioned as a parent of the adoptee" has the meaning set forth in section 15-11115, substituting "adoptee" for "child" in that definition. (e) "Functioned as a parent of the child" has the meaning set forth in section 15-11-115. (f) "Genetic parent" has the meaning set forth in section 15-11-115. (g) "Gestational child" has the meaning set forth in section 15-11-121. (h) "Relative" has the meaning set forth in section 15-11-115. (2) Terms of relationship. A class gift that uses a term of relationship to identify the class members includes a child of assisted reproduction, a gestational child, and, except as otherwise provided in subsections (5) and (6) of this section, an adoptee and a child born to parents who are not married to each other, and their respective descendants if appropriate to the class, in accordance with the rules for intestate succession regarding parent-child relationships. (3) Relatives by marriage. Terms of relationship in a governing instrument that do not differentiate relationships by blood from those by marriage, such as uncles, aunts, nieces, or nephews, standing alone shall be construed to exclude relatives by marriage. (4) Half-blood relatives. Terms of relationship in a governing instrument that do not differentiate relationships by the half blood from those by the whole blood, such as brothers, sisters, nieces, or nephews, standing alone shall be construed to include both types of relationships. (5) Transferor not genetic parent. In construing a dispositive provision of a transferor who is not the genetic parent, a child of a genetic parent is not considered the child of the genetic parent unless the genetic parent, a relative of the genetic parent, or the spouse or surviving spouse of the genetic parent or of a relative of the genetic parent functioned as a parent of the child before the child reached eighteen years of age. (6) Transferor not adoptive parent. In construing a dispositive provision of a transferor who is not the adoptive parent, an adoptee is not considered the child of the adoptive parent unless: (a) The adoption took place before the adoptee reached eighteen years of age; (b) The adoptive parent was the adoptee's stepparent or foster parent; or (c) The adoptive parent functioned as a parent of the adoptee before the adoptee reached eighteen years of age. (7) Class-closing rules. The following rules apply for purposes of the class-closing rules: (a) A child in utero at a particular time is treated as living at that time if the child lives one hundred twenty hours after birth. (b) If a child of assisted reproduction or a gestational child is conceived posthumously and the distribution date is the deceased parent's death, the child is treated as living on the distribution date if the child lives one hundred twenty hours after birth and was in utero not later than thirty-six months after the deceased parent's death or born not later than forty-five months after the deceased parent's death. (c) An individual who is in the process of being adopted when the class closes is treated as adopted when the class closes if the adoption is subsequently granted. Source: L. 94: Entire part R&RE, p. 1012, § 3, effective July 1, 1995. L. 2009: Entire section amended, (HB 09-1287), ch. 310, p. 1685, § 14, effective July 1, 2010. L. 2010: (3) and (4) amended, (SB 10-199), ch. 374, p. 1751, § 12, effective July 1. Colorado Revised Statutes 2019 Page 220 of 600 Uncertified Printout Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-11-706. Nonprobate transfers - deceased beneficiary. (1) Definitions. This section shall not apply to wills; beneficiary deeds; insurance or annuity policies; pension, profit sharing, retirement, or similar benefit plans; or a transfer of a vehicle title as described in section 42-6110.5. As used in this section, unless the context otherwise requires: (a) "Alternative beneficiary designation" means a beneficiary designation that is expressly created by the governing instrument and, under the terms of the governing instrument, can take effect instead of another beneficiary designation on the happening of one or more events, including survival of the decedent or failure to survive the decedent, whether an event is expressed in condition-precedent, condition-subsequent, or any other form. (b) "Beneficiary" means the beneficiary of a beneficiary designation under which the beneficiary must survive the decedent and includes (i) a class member if the beneficiary designation is in the form of a class gift and (ii) an individual or class member who was deceased at the time the beneficiary designation was executed as well as an individual or class member who was then living but who failed to survive the decedent, but excludes a joint tenant of a joint tenancy with the right of survivorship and a party to a joint and survivorship account. (c) "Beneficiary designation" includes an alternative beneficiary designation and a beneficiary designation in the form of a class gift. (d) "Class member" includes an individual who fails to survive the decedent but who would have taken under a beneficiary designation in the form of a class gift had he or she survived the decedent. (e) (Reserved) (f) "Surviving beneficiary" or "surviving descendant" means a beneficiary or a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under section 15-11-702. (2) Substitute gift. If a beneficiary fails to survive the decedent and is a grandparent, or a descendant of a grandparent of the decedent, the following apply: (a) Except as provided in paragraph (d) of this subsection (2), if the beneficiary designation is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary's surviving descendants. They take per capita at each generation the property to which the beneficiary would have been entitled had the beneficiary survived the decedent. (b) Except as provided in paragraph (d) of this subsection (2), if the beneficiary designation is in the form of a class gift, other than a beneficiary designation to "issue", "descendants", "heirs of the body", "heirs", "next of kin", "relatives", or "family", or a class described by language of similar import, a substitute gift is created in the deceased beneficiary's or beneficiaries' surviving descendants. The property to which the beneficiaries would have been entitled had all of them survived the decedent passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which he or she would have been entitled had the deceased beneficiaries survived the decedent. Each deceased beneficiary's surviving descendants who are substituted for the deceased beneficiary take per capita at each generation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the decedent. For the Colorado Revised Statutes 2019 Page 221 of 600 Uncertified Printout purposes of this paragraph (b), "deceased beneficiary" means a class member who failed to survive the decedent and left one or more surviving descendants. (c) Except as otherwise provided in a governing instrument, for the purposes of this part 7, words of survivorship, such as in a beneficiary designation to an individual "if he survives me", or in a beneficiary designation to "my surviving children", are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section. The use of language such as "and if he does not survive me the gift shall lapse" or "to A and not to A's descendants" shall be sufficient indication of an intent contrary to the application of this section. (d) If a governing instrument creates an alternative beneficiary designation with respect to a beneficiary designation for which a substitute gift is created by paragraph (a) or (b) of this subsection (2), the substitute gift is superseded by the alternative beneficiary designation only if an expressly designated beneficiary of the alternative beneficiary designation is entitled to take. (3) More than one substitute gift; which one takes. If, under subsection (2) of this section, substitute gifts are created and not superseded with respect to more than one beneficiary designation and the beneficiary designations are alternative beneficiary designations, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows: (a) Except as provided in paragraph (b) of this subsection (3), the property passes under the primary substitute gift. (b) If there is a younger-generation beneficiary designation, the property passes under the younger-generation substitute gift and not under the primary substitute gift. (c) As used in this subsection (3), unless the context otherwise requires: (I) "Primary beneficiary designation" means the beneficiary designation that would have taken effect had all the deceased beneficiaries of the alternative beneficiary designations who left surviving descendants survived the decedent. (II) "Primary substitute gift" means the substitute gift created with respect to the primary beneficiary designation. (III) "Younger-generation beneficiary designation" means a beneficiary designation that: (A) Is to a descendant of a beneficiary of the primary beneficiary designation; (B) Is an alternative beneficiary designation with respect to the primary beneficiary designation; (C) Is a beneficiary designation for which a substitute gift is created; and (D) Would have taken effect had all the deceased beneficiaries who left surviving descendants survived the decedent except the deceased beneficiary or beneficiaries of the primary beneficiary designation. (IV) "Younger-generation substitute gift" means the substitute gift created with respect to the younger-generation beneficiary designation. (4) Protection of payors. (a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this section, is not entitled to the payment or item of property, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party has received written notice as described in paragraph (b) of this subsection (4). A payor or other third party shall have no duty or obligation to inquire as to the existence of a substituted gift under this section or to seek any evidence with respect to any such substituted gift. A payor or other third party is only Colorado Revised Statutes 2019 Page 222 of 600 Uncertified Printout liable for actions taken two or more business days after the payor or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this subsection (4) shall not be sufficient to impose liability on a payor or other third party for actions taken pursuant to the governing instrument. (b) The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a claim to a substitute gift is being made under this section. The written notice shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. (c) Upon receipt of the written notice described in paragraph (b) of this subsection (4), a payor or other third party may pay to the court any amount owed or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payor or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payor or other third party shall file with the court a copy of the written notice received by the payor or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payor or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payor or other third party discharges the payor or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court. (d) The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. (e) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section. (5) Protection of bona fide purchasers; personal liability of recipient. (a) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (b) If this section or any part of this section is preempted by federal law (other than the federal "Employee Retirement Income Security Act of 1974", as amended) with respect to a Colorado Revised Statutes 2019 Page 223 of 600 Uncertified Printout payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted. Source: L. 94: Entire part R&RE, p. 1013, § 3, effective July 1, 1995. L. 95: (2) amended, p. 357, § 9, effective July 1. L. 2004: IP(1) amended, p. 733, § 2, effective August 4. L. 2017: IP(1) amended, (HB 17-1213), ch. 184, p. 675, § 2, effective August 9. 15-11-707. Survivorship with respect to future interests under terms of trust; substitute takers. (1) Definitions. As used in this section, unless the context otherwise requires: (a) "Alternative future interest" means an expressly created future interest that can take effect in possession or enjoyment instead of another future interest on the happening of one or more events, including survival of an event or failure to survive an event, whether an event is expressed in condition-precedent, condition-subsequent, or any other form. A residuary clause in a will does not create an alternative future interest with respect to a future interest created in a nonresiduary devise in the will, whether or not the will specifically provides that lapsed or failed devises are to pass under the residuary clause. (b) "Beneficiary" means the beneficiary of a future interest and includes a class member if the future interest is in the form of a class gift. (c) "Class member" includes an individual who fails to survive the distribution date but who would have taken under a future interest in the form of a class gift had he or she survived the distribution date. (d) "Distribution date", with respect to a future interest, means the time when the future interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but may occur at a time during the course of a day. (e) "Future interest" includes an alternative future interest and a future interest in the form of a class gift. (f) "Future interest under the terms of a trust" means a future interest that was created by a transfer creating a trust or to an existing trust or by an exercise of a power of appointment to an existing trust, directing the continuance of an existing trust, designating a beneficiary of an existing trust, or creating a trust. (g) "Surviving beneficiary" or "surviving descendant" means a beneficiary or a descendant who neither predeceased the distribution date nor is deemed to have predeceased the distribution date under section 15-11-702. (2) Survivorship required; substitute gift. A future interest under the terms of a trust is contingent on the beneficiary's surviving the distribution date. If a beneficiary of a future interest under the terms of a trust fails to survive the distribution date, the following apply: (a) Except as provided in paragraph (d) of this subsection (2), if the future interest is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary's surviving descendants. They take per capita at each generation Colorado Revised Statutes 2019 Page 224 of 600 Uncertified Printout the property to which the beneficiary would have been entitled had the beneficiary survived the distribution date. (b) Except as provided in paragraph (d) of this subsection (2), if the future interest is in the form of a class gift, other than a future interest to "issue", "descendants", "heirs of the body", "heirs", "next of kin", "relatives", or "family", or a class described by language of similar import, a substitute gift is created in the deceased beneficiary's or beneficiaries' surviving descendants. The property to which the beneficiaries would have been entitled had all of them survived the distribution date passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which he or she would have been entitled had the deceased beneficiaries survived the distribution date. Each deceased beneficiary's surviving descendants who are substituted for the deceased beneficiary take per capita at each generation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the distribution date. For the purposes of this paragraph (b), "deceased beneficiary" means a class member who failed to survive the distribution date and left one or more surviving descendants. (c) For the purposes of this part 7, words of survivorship attached to a future interest are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section. Words of survivorship include words of survivorship that relate to the distribution date or to an earlier or an unspecified time, whether those words of survivorship are expressed in condition-precedent, condition-subsequent, or any other form. (d) If a governing instrument creates an alternative future interest with respect to a future interest for which a substitute gift is created by paragraph (a) or (b) of this subsection (2), the substitute gift is superseded by the alternative future interest only if an expressly designated beneficiary of the alternative future interest is entitled to take in possession or enjoyment. (3) More than one substitute gift; which one takes. If, under subsection (2) of this section, substitute gifts are created and not superseded with respect to more than one future interest and the future interests are alternative future interests, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows: (a) Except as provided in paragraph (b) of this subsection (3), the property passes under the primary substitute gift. (b) If there is a younger-generation future interest, the property passes under the younger-generation substitute gift and not under the primary substitute gift. (c) As used in this subsection (3), unless the context otherwise requires: (I) "Primary future interest" means the future interest that would have taken effect had all the deceased beneficiaries of the alternative future interests who left surviving descendants survived the distribution date. (II) "Primary substitute gift" means the substitute gift created with respect to the primary future interest. (III) "Younger-generation future interest" means a future interest that: (A) Is to a descendant of a beneficiary of the primary future interest; (B) Is an alternative future interest with respect to the primary future interest; (C) Is a future interest for which a substitute gift is created; and (D) Would have taken effect had all the deceased beneficiaries who left surviving descendants survived the distribution date except the deceased beneficiary or beneficiaries of the primary future interest. Colorado Revised Statutes 2019 Page 225 of 600 Uncertified Printout (IV) "Younger-generation substitute gift" means the substitute gift created with respect to the younger-generation future interest. (4) If no other takers, property passes under residuary clause or to transferor's heirs. Except as provided in subsection (5) of this section, if, after the application of subsections (2) and (3) of this section, there is no surviving taker, the property passes in the following order: (a) If the trust was created in a nonresiduary devise in the transferor's will or in a codicil to the transferor's will, the property passes under the residuary clause in the transferor's will; for purposes of this section, the residuary clause is treated as creating a future interest under the terms of a trust. (b) If no taker is produced by the application of paragraph (a) of this subsection (4), the property passes to the transferor's heirs under section 15-11-711. (5) If no other takers and if future interest created by exercise of power of appointment. If, after the application of subsections (2) and (3) of this section, there is no surviving taker and if the future interest was created by the exercise of a power of appointment: (a) The property passes under the donor's gift-in-default clause, if any, which clause is treated as creating a future interest under the terms of a trust; and (b) If no taker is produced by the application of paragraph (a) of this subsection (5), the property passes as provided in subsection (4) of this section. For purposes of subsection (4) of this section, "transferor" means the donor if the power was a nongeneral power and means the donee if the power was a general power. Source: L. 94: Entire part R&RE, p. 1017, § 3, effective July 1, 1995. L. 95: (2)(a) and (2)(b) amended, p. 358, § 10, effective July 1. 15-11-708. Class gifts to "descendants", "issue", or "heirs of the body"; form of distribution if none specified. If a class gift in favor of "descendants", "issue", or "heirs of the body" does not specify the manner in which the property is to be distributed among the class members, the property is distributed among the class members who are living when the interest is to take effect in possession or enjoyment, in such shares as they would receive, under the applicable law of intestate succession, if the designated ancestor had then died intestate owning the subject matter of the class gift. Source: L. 94: Entire part R&RE, p. 1021, § 3, effective July 1, 1995. 15-11-709. By representation; per capita at each generation; per stirpes. (1) Definitions. As used in this section, unless the context otherwise requires: (a) "Deceased child" or "deceased descendant" means a child or a descendant who either predeceased the distribution date or is deemed to have predeceased the distribution date under section 15-11-702. (b) "Distribution date", with respect to an interest, means the time when the interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but may occur at a time during the course of a day. (c) "Surviving ancestor", "surviving child", or "surviving descendant" means an ancestor, a child, or a descendant who neither predeceased the distribution date nor is deemed to have predeceased the distribution date under section 15-11-702. Colorado Revised Statutes 2019 Page 226 of 600 Uncertified Printout (2) Per capita at each generation. If an applicable statute or a governing instrument calls for property to be distributed "per capita at each generation", the property is divided into as many equal shares as there are (i) surviving descendants in the generation nearest to the designated ancestor which contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the distribution date. (3) Per stirpes. If a governing instrument calls for property to be distributed "per stirpes", the property is divided into as many equal shares as there are (i) surviving children of the designated ancestor and (ii) deceased children who left surviving descendants. Each surviving child, if any, is allocated one share. The share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants. (4) Deceased descendant with no surviving descendant disregarded. For the purposes of subsections (2), (3), and (5) of this section, an individual who is deceased and left no surviving descendant is disregarded, and an individual who leaves a surviving ancestor who is a descendant of the designated ancestor is not entitled to a share. (5) By representation. For all governing instruments executed before, on, or after July 1, 1995, unless the governing instrument provides otherwise, the following definition of "by representation" shall apply: If "by representation" is called for, the property is divided into as many equal shares as there are (i) surviving descendants in the generation nearest to the designated ancestor which contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share and the share of each deceased descendant in the same generation is divided among his or her descendants in the same manner. Source: L. 94: Entire part R&RE, p. 1021, § 3, effective July 1, 1995. L. 95: Entire section amended, p. 358, § 11, effective July 1. 15-11-710. Worthier-title doctrine abolished. The doctrine of worthier-title is abolished as a rule of law and as a rule of construction. Language in a governing instrument describing the beneficiaries of a disposition as the transferor's "heirs", "heirs at law", "next of kin", "distributees", "relatives", or "family", or language of similar import, does not create or presumptively create a reversionary interest in the transferor. Source: L. 94: Entire part R&RE, p. 1022, § 3, effective July 1, 1995. 15-11-711. Interests in "heirs" and like. If an applicable statute or a governing instrument calls for a present or future distribution to, or creates a present or future interest in, a designated individual's "heirs", "heirs at law", "next of kin", "relatives", or "family", or language of similar import, the property passes to those persons in such shares as would succeed to the designated individual's intestate estate under the intestate succession law of the designated individual's domicile if the designated individual died when the donative disposition is to take Colorado Revised Statutes 2019 Page 227 of 600 Uncertified Printout effect in possession or enjoyment. If the designated individual's surviving spouse is living but is remarried at the time the interest is to take effect in possession or enjoyment, the surviving spouse is not an heir of the designated individual. Source: L. 94: Entire part R&RE, p. 1022, § 3, effective July 1, 1995. 15-11-712. Simultaneous death; disposition of property. The rules of construction in this section shall control in those situations not subject to the control of section 15-11-702. (1) Where the title to property or the devolution thereof depends upon priority of death and there is no clear and convincing evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he or she had survived, except as provided otherwise in this section. (2) (a) If property is so disposed of that the right of a beneficiary to succeed to any interest therein is conditional upon his or her surviving another person, and both persons die, and there is no clear and convincing evidence that the two have died otherwise than simultaneously, the beneficiary shall be deemed not to have survived. (b) If there is no clear and convincing evidence that two or more beneficiaries have died otherwise than simultaneously and property has been disposed of in such a way that at the time of their deaths each of such beneficiaries would have been entitled to the property if he or she had survived the others, the property shall be divided into as many equal portions as there were beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each of such beneficiaries had survived. (3) Where there is no clear and convincing evidence that two joint tenants have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants. For the purposes of this section, the term "joint tenants" includes owners of property held under circumstances which entitled one or more to the whole of the property on the death of the other or others. (4) Where a husband and wife have died leaving community property and there is no clear and convincing evidence that they have died otherwise than simultaneously, one-half of all the community property shall pass as if the husband had survived, and as if said one-half were his separate property, and the other one-half thereof shall pass as if the wife had survived, and as if said other one-half were her separate property. (5) Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no clear and convincing evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary; except that, if the policy is community property of the insured and his or her spouse, and there is no alternative beneficiary, or no alternative beneficiary except the estate or personal representative of the insured, the proceeds shall be distributed as community property. (6) This section shall not apply in the case of wills, living trusts, deeds, or contracts of insurance or any other situation where provision is made for distribution of property different from the provisions of this section or where provision is made for a presumption as to survivorship which results in a distribution of property different from that here provided. Colorado Revised Statutes 2019 Page 228 of 600 Uncertified Printout Source: L. 94: Entire part R&RE, p. 1022, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-613 as it existed prior to 1995. 15-11-713. Construction of wills and trusts containing formula marital clauses. (1) If a decedent dies leaving a will that was executed or a trust that was created before September 12, 1981, which will or trust contains a formula expressly providing that the decedent's spouse or a qualifying trust is to receive the maximum amount of property qualifying for the marital deduction allowable by federal law, such formula provision shall be construed as referring to the amount of property which, after utilization of the credits available to the decedent's estate, produces the least possible federal estate tax and is eligible for the marital deduction as allowed under the federal "Internal Revenue Code", as amended by section 403 (a) of the federal "Economic Recovery Tax Act of 1981", P. L. No. 97-34, in effect at the time of the decedent's death; except that such construction shall not be made if its effect is to reduce the amount of property passing to the surviving spouse or a qualifying trust. Such construction shall only be made if the following requirements are met: (a) The decedent died after December 31, 1988; (b) The formula referred to in this subsection (1) was not amended to refer specifically to an unlimited marital deduction under federal law at any time after September 12, 1981, and before the death of the decedent; (c) The will or trust contains a devise to, or is in trust for the benefit of, the decedent's spouse which qualifies for a marital deduction pursuant to section 2056 of the federal "Internal Revenue Code of 1986", 26 U.S.C. sec. 2056, as amended; (d) There is no finding by the court having jurisdiction over the decedent's estate that the decedent intended to refer to the maximum marital deduction of the internal revenue code in effect at the time that the will or trust was drafted; and (e) All distributions in satisfaction of the surviving spouse's share of the estate or the qualifying trust for the surviving spouse have not been completed. (2) For the purposes of this section: (a) "Amount" includes a fractional, pecuniary, or residual amount. (b) "Optimum marital deduction formula" means any formula in a will or trust that provides that the decedent's spouse or a qualifying trust is to receive the maximum amount of property that qualifies for the estate tax marital deduction allowable by federal law that produces the least possible or no federal estate tax. A formula subject to construction under subsection (1) of this section is, as construed by subsection (1) of this section, an optimum marital deduction formula. (c) "Qualifying trust" means any trust for the benefit of the decedent's spouse which qualifies for the marital deduction allowed under section 2056 of the federal "Internal Revenue Code of 1986", 26 U.S.C. sec. 2056, as amended. (3) In the case of an optimum marital deduction formula that contains a general reference to federal estate tax credits or otherwise requires the state death tax credit to be taken into account without a specific reference to such tax credit, the decedent is presumed to have intended that such tax credit be taken into account to reduce the amount that the decedent's spouse or a qualifying trust is to receive, only to the extent that the overall estate tax burden on the decedent's estate is not thereby increased. However, if a preponderance of the evidence Colorado Revised Statutes 2019 Page 229 of 600 Uncertified Printout shows that the decedent intended to increase the overall estate tax burden on the estate, the state death tax credit shall be taken into account fully for the purposes of reducing the amount that the decedent's spouse or a qualifying trust is to receive. Any formula subject to construction under subsection (1) of this section is subject to the presumption set forth in this subsection (3). (4) In the case of an optimum marital deduction formula that specifically requires the state death tax credit to be taken into account and does not contain any words limiting the extent to which such credit shall be taken into account, the decedent is presumed to have intended that such credit be taken into account fully for the purpose of reducing the amount that the decedent's spouse or a qualifying trust is to receive, notwithstanding any resulting increase in the overall estate tax burden on the estate. (5) Subsections (3) and (4) of this section apply with respect to any decedent who dies after December 31, 1988, unless all distributions in satisfaction of the surviving spouse's share of the estate or the qualifying trust for the surviving spouse are completed by July 1, 1994. Source: L. 94: Entire part R&RE, p. 1024, § 3, effective July 1, 1995. L. 95: IP(1) amended, p. 360, § 12, effective July 1. Editor's note: This section is similar to former § 15-11-614 as it existed prior to 1995. PART 8 GENERAL PROVISIONS CONCERNING PROBATE AND NONPROBATE TRANSFERS 15-11-801. Disclaimer of property interests. (Repealed) Source: L. 94: Entire part R&RE, p. 1024, § 3, effective July 1, 1995. L. 95: (4) amended, p. 360, § 13, effective July 1. L. 2011: Entire section repealed, (SB 11-166), ch. 203, p. 868, § 2, effective August 10. 15-11-802. Effect of divorce, annulment, and decree of separation. (1) An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he or she is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section. (2) For purposes of parts 1, 2, 3, and 4 of this article, and of section 15-12-203, a surviving spouse does not include: (a) An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless subsequently they participate in a marriage ceremony purporting to marry each to the other or enter into a common-law marriage; (b) An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony or enters into a common-law marriage with a third individual; or (c) An individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights. Colorado Revised Statutes 2019 Page 230 of 600 Uncertified Printout Source: L. 94: Entire part R&RE, p. 1027, § 3, effective July 1, 1995. Editor's note: This section is similar to former § 15-11-802 as it existed prior to 1995. 15-11-803. Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations. (1) Definitions. As used in this section, unless the context otherwise requires: (a) "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument. (b) "Felonious killing", except as provided in subsection (7) of this section, is the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter, as said crimes are defined in sections 18-3-102 to 18-3-104, C.R.S. (c) "Governing instrument" means a governing instrument executed by the decedent. (d) "Killer" is any individual who has committed a felonious killing. (e) "Revocable", with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate himself or herself in place of his or her killer and or the decedent then had capacity to exercise the power. (2) Forfeiture of statutory benefits. An individual who feloniously kills the decedent forfeits all benefits with respect to the decedent's estate, including an intestate share, an electiveshare, an omitted spouse's or child's share, the decedent's homestead exemption under section 38-41-204, C.R.S., exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed his or her intestate share. (3) Revocation of benefits under governing instruments. The felonious killing of the decedent: (a) Revokes any revocable (i) disposition or appointment of property made by the decedent to the killer in a governing instrument, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the killer, and (iii) nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and (b) Severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common. (4) Effect of severance. A severance under paragraph (b) of subsection (3) of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership. (5) Effect of revocation. Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent. Colorado Revised Statutes 2019 Page 231 of 600 Uncertified Printout (6) Wrongful acquisition of property. A wrongful acquisition of property or interest by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from his or her wrong. (7) Felonious killing; how determined - time limitations on civil proceedings. (a) Criminal proceedings. After all right to appeal has been waived or exhausted following the entry of a judgment of conviction establishing criminal accountability for the felonious killing of the decedent, such judgment conclusively establishes the convicted individual as the decedent's killer for purposes of this section. (b) Civil proceedings. Notwithstanding the status or disposition of a criminal proceeding, a court of competent jurisdiction, upon the petition of an interested person, shall determine whether, by a preponderance of evidence standard, each of the elements of felonious killing of the decedent has been established. If such elements have been so established, such determination conclusively establishes that individual as the decedent's killer for purposes of this section. (c) Time limitations on civil proceedings. (I) A petition brought under paragraph (b) of this subsection (7) may not be filed more than three years after the date of the decedent's death. (II) Notwithstanding any provision of subparagraph (I) of this paragraph (c) to the contrary, if a criminal proceeding is commenced in a court of this state or in another jurisdiction against an individual for the felonious killing of the decedent, a petition brought under paragraph (b) of this subsection (7) may be filed so long as the petition is filed no later than one year after all right to appeal has been waived or exhausted following an entry of a judgment of conviction, or a dismissal, or an acquittal in the criminal proceeding. However, if the death and the possible culpability of the slayer for the felonious slaying of the decedent is not known to the petitioner within the three-year period of limitations established pursuant to subparagraph (I) of this paragraph (c), the accrual of the action under paragraph (b) of this subsection (7) and the possibility of the tolling of the running of the three-year period of limitation under subparagraph (I) of this paragraph (c) shall be determined according to the principles of accrual and tolling established by case law with respect to similar limitations established under section 13-80-108, C.R.S. (d) Judgment of conviction. For the purposes of this subsection (7), a "judgment of conviction" includes a judgment of conviction on a plea of guilty or nolo contendere, or a judgment of conviction on a verdict of guilty by the court or by a jury. (8) Protection of payors and other third parties. (a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a felonious killing, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party has received written notice as described in paragraph (b) of this subsection (8). A payor or other third party shall have no duty or obligation to make any determination as to whether or not the decedent was the victim of a felonious killing or to seek any evidence with respect to any such felonious killing even if the circumstances of the decedent's death are suspicious or questionable as to the beneficiary's participation in any such felonious killing. A payor or other third party is only liable for actions taken two or more business days after the payor or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this Colorado Revised Statutes 2019 Page 232 of 600 Uncertified Printout subsection (8) shall not be sufficient to impose liability on a payor or other third party for actions taken pursuant to the governing instrument. (b) The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a claim of forfeiture or revocation is being made under this section. The written notice shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. (c) Upon receipt of the written notice described in paragraph (b) of this subsection (8), a payor or other third party may pay to the court any amount owed or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payor or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payor or other third party shall file with the court a copy of the written notice received by the payor or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payor or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payor or other third party discharges the payor or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court. (d) The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. (e) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section. (9) Protection of bona fide purchasers; personal liability of recipient. (a) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (b) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is Colorado Revised Statutes 2019 Page 233 of 600 Uncertified Printout personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted. Source: L. 94: Entire part R&RE, p. 1027, § 3, effective July 1, 1995. L. 2011: (7) amended, (SB 11-083), ch. 101, p. 302, § 3, effective August 10. Editor's note: This section is similar to former § 15-11-803 as it existed prior to 1995. 15-11-804. Revocation of probate and nonprobate transfers by divorce; no revocation by other changes of circumstances. (1) Definitions. As used in this section, unless the context otherwise requires: (a) "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument. (b) "Divorce or annulment" means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage, that would exclude the spouse as a surviving spouse within the meaning of section 15-11-802. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section. (c) "Divorced individual" includes an individual whose marriage has been annulled. (d) "Governing instrument" refers to a governing instrument executed by the divorced individual before the divorce or annulment of his or her marriage to his or her former spouse. (e) "Relative of the divorced individual's former spouse" means an individual who is related to the divorced individual's former spouse by blood, adoption, or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption, or affinity. (f) "Revocable" with respect to a disposition, appointment, provision, or nomination, means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of his or her former spouse or former spouse's relative, whether or not the divorced individual was then empowered to designate himself or herself in place of his or her former spouse or in place of his or her former spouse's relative and whether or not the divorced individual then had the capacity to exercise the power. (2) Revocation upon divorce. Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage: (a) Revokes any revocable (i) disposition or appointment of property made by a divorced individual to his or her former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse or on a relative of the divorced individual's former spouse, and (iii) nomination in a governing instrument nominating a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent, or guardian; and Colorado Revised Statutes 2019 Page 234 of 600 Uncertified Printout (b) Severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the former spouses into tenancies in common. (3) Effect of severance. A severance under paragraph (b) of subsection (2) of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership. (4) Effect of revocation. Provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. (5) Revival if divorce nullified. Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment. (6) No revocation for other change of circumstances. No change of circumstances other than as described in this section and in section 15-11-803 effects a revocation. (7) Protection of payors and other third parties. (a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, or remarriage, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party has received written notice as described in paragraph (b) of this subsection (7). A payor or other third party shall have no duty or obligation to inquire as to the continued marital relationship between the decedent and such beneficiary or to seek any evidence with respect to any such marital relationship. A payor or other third party is only liable for actions taken two or more business days after the payor or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this subsection (7) shall not be sufficient to impose liability on a payor or other third party for actions taken pursuant to the governing instrument. (b) The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a divorce, annulment, or remarriage of the decedent and the designated beneficiary occurred. The written notice shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. (c) Upon receipt of the written notice described in paragraph (b) of this subsection (7), a payor or other third party may pay to the court any amount owed or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payor or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having Colorado Revised Statutes 2019 Page 235 of 600 Uncertified Printout jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payor or other third party shall file with the court a copy of the written notice received by the payor or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payor or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payor or other third party discharges the payor or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court. (d) The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. (e) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section. (8) Protection of bona fide purchasers; personal liability of recipient. (a) A person who purchases property from a former spouse, relative of a former spouse, or any other person for value and without notice, or who receives from a former spouse, relative of a former spouse, or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a former spouse, relative of a former spouse, or other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (b) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a former spouse, relative of the former spouse, or any other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted. Source: L. 94: Entire part R&RE, p. 1031, § 3, effective July 1, 1995. L. 95: (2)(a) amended, p. 361, § 14, effective July 1. 15-11-805. Ownership of personal property between spouses. (1) For purposes of this article, tangible personal property in the joint possession or control of the decedent and his or her surviving spouse at the time of the decedent's death is presumed to be owned by the decedent and the decedent's spouse in joint tenancy with right of survivorship if ownership is not Colorado Revised Statutes 2019 Page 236 of 600 Uncertified Printout otherwise evidenced by a certificate of title, bill of sale, or other writing. This presumption shall not apply to: (a) Property acquired by either spouse before the marriage; (b) Property acquired by either spouse by gift or inheritance during the marriage; (c) Property used by the decedent spouse in a trade or business in which the surviving spouse has no interest; or (d) Property held for another. (e) (Deleted by amendment, L. 2002, p. 653, § 8, effective July 1, 2002.) (2) The presumption created in this section may be overcome by a preponderance of the evidence demonstrating that ownership was held other than in joint tenancy with right of survivorship. Source: L. 99: Entire section added, p. 466, § 4, effective July 1. L. 2002: Entire section amended, p. 653, § 8, effective July 1. 15-11-806. Reformation to correct mistakes. The court may reform the terms of a governing instrument other than a trust that is governed by section 15-5-415, even if unambiguous, to conform the terms to the transferor's intention if it is proved by clear and convincing evidence what the transferor's intent was and that the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement. Source: L. 2009: Entire section added, (HB 09-1287), ch. 310, p. 1687, § 15, effective July 1, 2010. L. 2018: Entire section amended, (SB 18-180), ch. 169, p. 1193, § 10, effective January 1, 2019. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-11-807. Modification to achieve transferor's tax objectives. To achieve the transferor's tax objectives, the court may modify the terms of a governing instrument other than a trust that is governed by section 15-5-416 in a manner that is not contrary to the transferor's probable intention. The court may provide that the modification has retroactive effect. Source: L. 2009: Entire section added, (HB 09-1287), ch. 310, p. 1687, § 15, effective July 1, 2010. L. 2018: Entire section amended, (SB 18-180), ch. 169, p. 1193, § 11, effective January 1, 2019. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. PART 9 HONORARY TRUSTS; TRUSTS FOR PETS Colorado Revised Statutes 2019 Page 237 of 600 Uncertified Printout 15-11-901. Honorary trusts; trusts for pets. (1) Honorary trust. Subject to subsection (3) of this section, and except as provided under sections 38-30-110, 38-30-111, and 38-30-112, C.R.S., if (i) a trust is for a specific, lawful, noncharitable purpose or for lawful, noncharitable purposes to be selected by the trustee and (ii) there is no definite or definitely ascertainable beneficiary designated, the trust may be performed by the trustee for twenty-one years but no longer, whether or not the terms of the trust contemplate a longer duration. (2) Trust for pets. Subject to this subsection (2) and subsection (3) of this section, a trust for the care of designated domestic or pet animals and the animals' offspring in gestation is valid. For purposes of this subsection (2), the determination of the "animals' offspring in gestation" is made at the time the designated domestic or pet animals become present beneficiaries of the trust. Unless the trust instrument provides for an earlier termination, the trust terminates when no living animal is covered by the trust. A governing instrument shall be liberally construed to bring the transfer within this subsection (2), to presume against the merely precatory or honorary nature of the disposition, and to carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the transferor's intent. Any trust under this subsection (2) shall be an exception to any statutory or common law rule against perpetuities. (3) Additional provisions applicable to honorary trusts and trusts for pets. In addition to the provisions of subsection (1) or (2) of this section, a trust covered by either of those subsections is subject to the following provisions: (a) Except as expressly provided otherwise in the trust instrument, no portion of the principal or income may be converted to the use of the trustee, other than reasonable trustee fees and expenses of administration, or to any use other than for the trust's purposes or for the benefit of a covered animal or animals. (b) Upon termination, the trustee shall transfer the unexpended trust property in the following order: (I) As directed in the trust instrument; (II) If the trust was created in a nonresiduary clause in the transferor's will or in a codicil to the transferor's will, under the residuary clause in the transferor's will; and (III) If no taker is produced by the application of subparagraph (I) or (II) of this paragraph (b), to the transferor's heirs under part 5 of this article. (c) (Reserved) (d) The intended use of the principal or income can be enforced by an individual designated for that purpose in the trust instrument, by the person having custody of an animal for which care is provided by the trust instrument, by a remainder beneficiary, or, if none, by an individual appointed by a court upon application to it by an individual. (e) All trusts created under this section shall be registered and all trustees shall be subject to the laws of this state applying to trusts and trustees. (f) (Reserved) (g) If no trustee is designated or no designated trustee is willing or able to serve, a court shall name a trustee. A court may order the transfer of the property to another trustee, if required to assure that the intended use is carried out and if no successor trustee is designated in the trust instrument or if no designated successor trustee agrees to serve or is able to serve. A court may also make such other orders and determinations as shall be advisable to carry out the intent of the transferor and the purpose of this section. Colorado Revised Statutes 2019 Page 238 of 600 Uncertified Printout Source: L. 94: Entire part R&RE, p. 1034, § 3, effective July 1, 1995. L. 95: (2) amended, p. 361, § 15, effective July 1. PART 10 INTERNATIONAL WILLS Law reviews: For article, "Foreign Jurisdiction Property Interests -- the Case for Multiple Wills", see 18 Colo. Law. 1519 (1989). 15-11-1001. Short title. This part 10 shall be known and may be cited as the "Uniform International Wills Act". Source: L. 89: Entire part added, p. 811, § 1, effective April 17. 15-11-1002. Definitions. As used in this part 10, unless the context otherwise requires: (1) "Authorized person" and "person authorized to act in connection with international wills" means a person who, by section 15-11-1010 or the laws of the United States, including members of the diplomatic and consular service of the United States designated by Foreign Service Regulations, is empowered to supervise the execution of international wills. (2) "International will" means a will executed in conformity with sections 15-11-1003 to 15-11-1006. Source: L. 89: Entire part added, p. 811, § 1, effective April 17. 15-11-1003. International wills - validity. (1) A will is valid as regards form irrespective particularly of the place where it is made, of the location of the assets, and of the nationality, domicile, or residence of the testator, if it is made in the form of an international will complying with the requirements of this part 10. (2) The invalidity of a will as an international will does not affect its formal validity as a will of another kind. (3) This part 10 does not apply to the form of testamentary dispositions made by two or more persons in one instrument. Source: L. 89: Entire part added, p. 811, § 1, effective April 17. 15-11-1004. International wills - requirements. (1) An international will shall be made in writing. It need not be written by the testator himself. It may be written in any language by hand or by any other means. (2) A testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof. Such testator need not inform the witnesses or the authorized person of the contents of the will. (3) In the presence of the witnesses and of the authorized person the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature. Colorado Revised Statutes 2019 Page 239 of 600 Uncertified Printout (4) If the testator is unable to sign, the absence of his signature shall not affect the validity of the international will if such testator indicates the reason for his inability to sign and the authorized person makes note thereof on the will. In such case, it is permissible for any other person present, including the authorized person or one of the witnesses, at the direction of the testator, to sign the testator's name for him if the authorized person makes note of this on the will, but it is not required that any person sign the testator's name for him. (5) The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator. (6) The provisions of section 15-11-501 shall apply. Source: L. 89: Entire part added, p. 812, § 1, effective April 17. 15-11-1005. International wills - other points of form. (1) All the signatures shall be placed at the end of the will. If the will consists of several sheets, each sheet must be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet must be numbered. (2) The date of the will shall be the date of its signature by the authorized person. Such date shall be noted at the end of the will by the authorized person. (3) The authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator, the place where he intends to have his will kept shall be mentioned in the certificate provided for in section 15-11-1006. (4) A will executed in compliance with section 15-11-1004 shall not be invalid as an international will merely because it does not comply with this section. Source: L. 89: Entire part added, p. 812, § 1, effective April 17. 15-11-1006. Certificate that requirements for an international will have been met. (1) The authorized person shall attach to the will a certificate to be signed by him establishing that the requirements of this part 10 for valid execution of an international will have been fulfilled. The authorized person shall keep a copy of the certificate and deliver another to the testator. (2) The certificate shall be substantially in the following form: CERTIFICATE 1. 2. 3. 4. I, _______________ (name, address, and capacity), a person authorized to act in connection with international wills, certify that on ______ (date) at ___________ (place) (testator) ___________________________________________________________ (name, address, and date and place of birth) in my presence and that of the witnesses (a) _____________ (name, address, and date and place of birth) (b) _____________ (name, address, and date and place of birth) has declared that the attached document is his will and that he knows the contents thereof. *(c) ______________ (social security number or any other individual-identifying number established by law) Colorado Revised Statutes 2019 Page 240 of 600 Uncertified Printout 5. 6. 7. 8. 9. I furthermore certify that: (a) In my presence and in that of the witnesses (1) the testator has signed the will or has acknowledged his signature previously affixed. *(2) following a declaration of the testator stating that he was unable to sign his will for the following reason _________________________, I have mentioned this declaration on the will, * and the signature has been affixed by ______________ (name and address) (to be completed if testator unable to sign) (b) the witnesses and I have signed the will; *(c) each page of the will has been signed by _______________ and numbered (to be completed if testator unable to sign); (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above; 10. (e) the witnesses met the conditions requisite to act as such according to the law under which I am acting; *(f) the intended place of deposit of safekeeping of the instrument pending the death of the testator is _________________. 11. *(g) the testator has requested me to include the following statement concerning the safekeeping of his will: 12. 13. 14. PLACE OF EXECUTION DATE SIGNATURE * to be completed if appropriate Source: L. 89: Entire part added, p. 812, § 1, effective April 17. 15-11-1007. Effect of certificate. In the absence of evidence to the contrary, the certificate of the authorized person is conclusive of the formal validity of the instrument as a will under this part 10. The absence or irregularity of a certificate does not affect the formal validity of a will under this part 10. Source: L. 89: Entire part added, p. 814, § 1, effective April 17. 15-11-1008. Revocation. An international will is subject to the rules of revocation of wills set forth in part 5 of this article. Source: L. 89: Entire part added, p. 814, § 1, effective April 17. 15-11-1009. Source and construction of this part. Sections 15-11-1001 to 15-11-1008 derive from Annex to Convention of October 26, 1973, Providing a Uniform Law on the Form of an International Will. In interpreting and applying this part 10, regard shall be had to its international origin and to the need for uniformity in its interpretation. Colorado Revised Statutes 2019 Page 241 of 600 Uncertified Printout Source: L. 89: Entire part added, p. 814, § 1, effective April 17. 15-11-1010. Persons authorized to act in relation to international will - eligibility recognition by authorizing agency. Individuals who have been admitted to practice law before the courts of this state and are currently licensed so to do are authorized persons in relation to international wills. Source: L. 89: Entire part added, p. 814, § 1, effective April 17. 15-11-1011. Filing of international will - certificate and deposit of will. (1) (a) The authorized person may file, at the time the international will is made, a completed copy of the certificate required by this part 10 with the clerk of the court having probate jurisdiction in the county in which the testator is domiciled. (b) If the testator is not domiciled in Colorado, the authorized person may file the completed copy of the certificate with the clerk of the court having probate jurisdiction in the county where the international will was executed. (c) The failure of the authorized person to correctly file a properly completed certificate with the appropriate court shall not in and of itself invalidate the international will. (2) Nothing in this section shall be construed to limit the ability of the testator or the testator's agent to deposit an international will with any court for safekeeping as authorized in section 15-11-515. Source: L. 89: Entire part added, p. 814, § 1, effective April 17. L. 94: (2) amended, p. 1037, § 8, effective July 1, 1995. PART 11 COLORADO STATUTORY RULE AGAINST PERPETUITIES ACT Law reviews: For article, "Colorado Revisits the Rule Against Perpetuities", see 35 Colo. Law. 75 (Nov. 2006). 15-11-1101. Short title. This part 11 shall be known and may be cited as the "Colorado Statutory Rule Against Perpetuities Act". Source: L. 91: Entire part added, p. 1445, § 9, effective May 31. 15-11-1102. Statutory rule against perpetuities - applicability - repeal. (Repealed) Source: L. 91: Entire part added, p. 1445, § 9, effective May 31. L. 2001: (1) amended, p. 888, § 4, effective June 1. L. 2006: (6) and (7) added, p. 377, § 7, effective July 1. Editor's note: Subsection (7) provided for the repeal of this section, effective July 1, 2008. (See L. 2006, p. 377.) Colorado Revised Statutes 2019 Page 242 of 600 Uncertified Printout 15-11-1102.5. Statutory rule against perpetuities. (1) Year 2001 rule. (a) Paragraph (b) of this subsection (1) shall apply to interests in trust and powers of appointment with respect to all or any part of a trust, which interest or power is created after May 31, 2001. (b) (I) A nonvested property interest is invalid unless it either vests or terminates within one thousand years after its creation. (II) A general power of appointment not presently exercisable because of a condition precedent is invalid unless the condition precedent either is satisfied or becomes impossible to satisfy within one thousand years after its creation. (III) A nongeneral power of appointment or a general testamentary power of appointment is invalid unless the power is irrevocably exercised or otherwise terminates within one thousand years after its creation. (2) Year 1991 rule. (a) Paragraph (b) of this subsection (2) shall apply to interests and powers created on or after May 31, 1991, other than interests and powers subject to paragraph (b) of subsection (1) of this section. (b) (I) A nonvested property interest is invalid unless: (A) When the interest is created, it is certain to vest or terminate no later than twentyone years after the death of an individual who is then alive; or (B) The interest either vests or terminates within ninety years after its creation. (II) A general power of appointment not presently exercisable because of a condition precedent is invalid unless: (A) When the power is created, the condition precedent is certain to be satisfied or become impossible to satisfy no later than twenty-one years after the death of an individual who is then alive; or (B) The condition precedent either is satisfied or becomes impossible to satisfy within ninety years after its creation. (III) A nongeneral power of appointment or a general testamentary power of appointment is invalid unless: (A) When the power is created, it is certain to be irrevocably exercised or to otherwise terminate no later than twenty-one years after the death of an individual who is then alive; or (B) The power is irrevocably exercised or otherwise terminates within ninety years after its creation. (IV) In determining whether a nonvested property interest or a power of appointment is valid under subparagraphs (I) to (III) of paragraph (b) of this subsection (2), the possibility that a child will be born to an individual after the individual's death is disregarded. (V) If, in measuring a period from the creation of a trust or other property arrangement for purposes of interests, powers, and trusts subject to this paragraph (b), language in a governing instrument seeks to disallow the vesting or termination of any interest or trust beyond, seeks to postpone the vesting or termination of any interest or trust until, or seeks to operate in effect in any similar fashion upon the later of the expiration of a period of time not exceeding twenty-one years after the death of the survivor of specified lives in being at the creation of the trust or other property arrangement or the expiration of a period of time that exceeds or might exceed twenty-one years after the death of the survivor or lives in being at the creation of the trust or other property arrangement, that language is inoperative to the extent it produces a period of time that exceeds twenty-one years after the death of the survivor of the specified lives. Colorado Revised Statutes 2019 Page 243 of 600 Uncertified Printout (3) Nonvested interest or power created by the exercise of a power. (a) For the purposes of paragraph (a) of subsection (1) of this section, paragraph (a) of subsection (2) of this section, and subparagraph (II) of paragraph (c) of this subsection (3), a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable. (b) For the purposes of paragraph (b) of subsection (1) of this section and paragraph (b) of subsection (2) of this section, a power of appointment created by the exercise of a nongeneral power of appointment shall be considered as created when the first power of appointment is created. This paragraph (b) shall be applied and construed in a manner that is consistent with the treatment of the exercise of a nongeneral power of appointment as nontaxable for purposes of the estate and gift tax under the federal internal revenue laws. (c) (I) Paragraph (b) of subsection (1) of this section shall not apply with respect to nonvested property interests and powers of appointment created by the exercise of a nongeneral power of appointment over all or any part of a trust that was irrevocable on September 25, 1985. (II) Nonvested property interests and powers of appointment, which interests or powers are so created on or after May 31, 1991, shall be subject to paragraph (b) of subsection (2) of this section. (III) This paragraph (c) shall be applied and construed in a manner that is consistent with the treatment of such a trust as exempt from the generation-skipping transfer tax under the federal internal revenue laws. Source: L. 2006: Entire section added, p. 378, § 8, effective July 1. 15-11-1103. When nonvested property interest or power of appointment created. (1) Except as provided in subsections (2) and (3) of this section and in sections 15-11-1102.5 (3)(a) and 15-11-1106 (1), the time of creation of a nonvested property interest or a power of appointment is determined under general principles of property law. (2) For purposes of this part 11, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of either a nonvested property interest or a property interest subject to a power of appointment described in section 15-11-1102 (2) or (3), the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates. For purposes of this part 11, a joint power with respect to community property or to marital property under the "Uniform Marital Property Act" held by individuals married to each other is a power exercisable by one person alone. (3) For purposes of this part 11, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the nonvested property interest or power of appointment in the original contribution was created. Source: L. 91: Entire part added, p. 1446, § 9, effective May 31. L. 2006: (1) amended, p. 381, § 11, effective July 1. 15-11-1104. Reformation - repeal. (Repealed) Colorado Revised Statutes 2019 Page 244 of 600 Uncertified Printout Source: L. 91: Entire part added, p. 1446, § 9, effective May 31. L. 2006: (2) and (3) added, p. 380, § 9, effective July 1. Editor's note: Subsection (3) provided for the repeal of this section, effective July 1, 2008. (See L. 2006, p. 380.) 15-11-1104.5. Reformation. (1) Year 2001 rule. Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the one thousand years allowed by section 15-11-1102.5 (1)(b)(I), (1)(b)(II), or (1)(b)(III) if: (a) A nonvested property interest or a power of appointment becomes invalid under section 15-11-1102.5 (1)(b); or (b) A class gift is not, but might become, invalid under section 15-11-1102.5 (1)(b), and the time has arrived when the share of any class member is to take effect in possession or enjoyment. (2) Year 1991 rule. Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the ninety years allowed by section 15-11-1102.5 (2)(b)(I)(B), (2)(b)(II)(B), or (2)(b)(III)(B) if: (a) A nonvested property interest or a power of appointment becomes invalid under section 15-11-1102.5 (2)(b); (b) A class gift is not, but might become, invalid under section 15-11-1102.5 (2)(b), and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or (c) A nonvested property interest that is not validated by section 15-11-1102.5 (2)(b)(I)(A) can vest but not within ninety years after its creation. Source: L. 2006: Entire section added, p. 380, § 10, effective July 1. 15-11-1105. Exclusions from statutory rule against perpetuities. (1) The statutory rule against perpetuities, as set forth in sections 15-11-1102 and 15-11-1102.5, does not apply to invalidate: (a) A nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of: (I) A premarital or postmarital agreement; (II) A separation or divorce settlement; (III) A spouse's election; (IV) A similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties; (V) A contract to make or not to revoke a will or trust; (VI) A contract to exercise or not to exercise a power of appointment; or (VII) A transfer in satisfaction of a duty of support. (VIII) (Deleted by amendment, L. 2006, p. 381, § 12, effective July 1, 2006.) Colorado Revised Statutes 2019 Page 245 of 600 Uncertified Printout (b) A fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income; (c) A power to appoint a fiduciary; (d) A discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal; (e) A nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision; (f) A nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income, or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse; or (g) A property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another statute of this state. Source: L. 91: Entire part added, p. 1447, § 9, effective May 31. L. 2006: IP(1) and (1)(a) amended, p. 381, § 12, effective July 1. 15-11-1106. Prospective application. (1) Except as extended by subsection (2) of this section, this part 11 applies to a nonvested property interest or a power of appointment that is created on or after May 31, 1991. For purposes of this section and section 15-11-1107, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable. (2) If a nonvested property interest or a power of appointment was created before May 31, 1991, and is determined in a judicial proceeding, commenced on or after May 31, 1991, to violate this state's rule against perpetuities as that rule existed before May 31, 1991, a court upon the petition of an interested person shall reform the disposition by inserting a savings clause that preserves most closely the transferor's manifested plan of distribution and that brings that plan within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created. Source: L. 91: Entire part added, p. 1448, § 9, effective May 31. L. 2006: (1) amended, p. 381, § 13, effective July 1. 15-11-1106.5. Retroactive application of certain provisions - notice of election. (1) Sections 15-11-1102.5 and 15-11-1104.5 shall apply retroactively with respect to an interest in a trust or a power of appointment over all or any part of a trust, which interest or power was created before July 1, 2006, unless a person who owns or holds such interest or power makes and delivers a notice of election as provided in this section. Colorado Revised Statutes 2019 Page 246 of 600 Uncertified Printout (2) (a) The notice of election pursuant to subsection (1) of this section shall be a written statement of such person's election against the retroactive application of sections 15-11-1102.5 and 15-11-1104.5. The notice of election shall include a reference to this section, the name and date of the trust, the names of the settlor and the trustee of the trust, a description of the interest or power, and the name and address of the person making the election. The notice of election shall be signed and acknowledged by such person. (b) The notice of election shall be delivered to a trustee of such trust on or before July 1, 2008. If there is no person serving as trustee at the time delivery is to be made, the notice of election may instead be delivered to a person authorized to appoint a successor trustee of the trust. When the successor trustee is appointed, the person to whom the notice of election was delivered shall deliver it to the successor trustee. (c) The notice of election shall be considered delivered to the person to whom delivery is required to be made when the notice of election or a copy thereof is delivered in person or when mailed by registered or certified mail, return receipt requested, to such person. (d) The trustee of the trust shall file the notice of election with the records maintained by the trustee for the trust. There shall be a rebuttable presumption that the notice of election was not delivered as provided in this section unless the notice of election or a copy of such notice is in the records of the trust maintained by the trustee. (3) No fiduciary for any trust, estate, individual, or other person with an interest, right, or power affected by the retroactive application of such amendments shall be required to make such election, nor shall such fiduciary be held responsible for not making such election. Source: L. 2006: Entire section added, p. 392, § 27, effective July 1. 15-11-1107. Uniformity of application and construction. (1) This part 11 shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this part 11 among states enacting the "Uniform Statutory Rule Against Perpetuities Act". With respect to any matter relating to the validity of an interest within the rule against perpetuities, unless a contrary intent appears, it shall be presumed that the transferor of the interest intended that the interest be valid. (2) This part 11 supersedes and abolishes the rule of the common law known as the rule against perpetuities for nonvested interests created after May 31, 1991. Source: L. 91: Entire part added, p. 1448, § 9, effective May 31. L. 2006: (2) amended, p. 382, § 14, effective July 1. PART 12 UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT 15-11-1201. Short title. This part 12 shall be known and may be cited as the "Uniform Disclaimer of Property Interests Act". Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 859, § 1, effective August 10. Colorado Revised Statutes 2019 Page 247 of 600 Uncertified Printout 15-11-1202. Definitions. As used in this part 12, unless the context otherwise requires: (1) "Disclaimant" means the person to whom a disclaimed interest or power would have passed if the disclaimer had not been made. (2) "Disclaimed interest" means the interest that would have passed to the disclaimant if the disclaimer had not been made. (3) "Disclaimer" means the refusal to accept an interest in or power over property. (4) "Fiduciary" means a personal representative, trustee, agent acting under a power of attorney, or other person authorized to act as a fiduciary with respect to the property of another person. (5) "Jointly held property" means property held in the name of two or more persons under an arrangement in which all holders have concurrent interests and under which the last surviving holder is entitled to the whole of the property. (6) "Person" means an individual; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity. (7) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band or an Alaskan native village recognized by federal law or formally acknowledged by a state. (8) "Trust" means: (a) An express trust, charitable or noncharitable, with additions thereto, whenever and however created; and (b) A trust created pursuant to a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 859, § 1, effective August 10. 15-11-1203. Scope. This part 12 applies to disclaimers of any interest in or power over property, whenever created. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 860, § 1, effective August 10. 15-11-1204. Part supplemented by other law. (1) Unless displaced by a provision of this part 12, the principles of law and equity supplement this part 12. (2) This part 12 does not limit any right of a person to waive, release, disclaim, or renounce an interest in or power over property under a law other than this part 12. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 860, § 1, effective August 10. 15-11-1205. Power to disclaim - general requirements - when irrevocable. (1) A person may disclaim, in whole or in part, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a Colorado Revised Statutes 2019 Page 248 of 600 Uncertified Printout spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim. (2) Except to the extent a fiduciary's right to disclaim is expressly restricted or limited by another statute of this state or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim, or if an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim. (3) To be effective, a disclaimer shall be in writing or other record, declare the disclaimer, describe the interest or power disclaimed, be signed by the person making the disclaimer, and be delivered or filed, and, with regard to an interest in real property, be recorded in the manner provided for in section 15-11-1212. In this subsection (3), "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (4) A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or any other interest or estate in the property. (5) A disclaimer becomes irrevocable when it is delivered or filed and, with regard to an interest in real property, recorded pursuant to section 15-11-1212, or when it becomes effective as provided for in sections 15-11-1206 through 15-11-1211, whichever occurs later. (6) A disclaimer made pursuant to this part 12 is not a transfer, assignment, or release. (7) No person obligated to distribute an interest disclaimed under this part 12 shall be liable to any person for distributing the interest as if the interest were not disclaimed unless the person obligated to distribute the interest receives a copy of the disclaimer prior to distributing the interest. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 860, § 1, effective August 10. 15-11-1206. Disclaimer of interest in property. (1) As used in this section, unless the context otherwise requires: (a) "Future interest" means an interest that takes effect in possession or enjoyment, if at all, later than the time of its creation. (b) "Method of representation" includes any method of division described in section 1511-709. (c) "Time of distribution" means the time when a disclaimed interest would have taken effect in possession or enjoyment. (2) Except for a disclaimer governed by section 15-11-1207 or 15-11-1208, the following rules apply to a disclaimer of an interest in property: (a) The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable, or, if the interest arose under the law of intestate succession, as of the time of the intestate's death. Colorado Revised Statutes 2019 Page 249 of 600 Uncertified Printout (b) The disclaimed interest passes according to any provision in the instrument creating the interest, providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general. (c) If the instrument does not contain a provision described in paragraph (b) of this subsection (2), the following rules apply: (I) If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant had ceased to exist immediately before the time of distribution. (II) If the disclaimant is an individual, except as otherwise provided for in subparagraphs (III) and (IV) of this paragraph (c), the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution. (III) If, by law or under the instrument, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died immediately before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution. (IV) (A) If the disclaimed interest would pass as part of the disclaimant's estate had the disclaimant died immediately before the time of distribution, the disclaimed interest instead passes as if by representation to the descendants of the disclaimant who are living at the time of distribution. (B) If the disclaimed interest would pass as part of the disclaimant's estate had the disclaimant died immediately before the time of distribution and no descendant of the disclaimant survives the time of distribution, the disclaimed interest passes to those persons, including the state to which such interest would escheat, but excluding the disclaimant, and in such shares as such persons would succeed to the transferor's intestate estate under the applicable law had the transferor died at the time of distribution. However, for purposes of this subsubparagraph (B), if the transferor's surviving spouse is living but remarried at the time of distribution, the transferor is deemed to have died unmarried at the time of distribution. (C) As used in sub-subparagraph (B) of this subparagraph (IV), "applicable law" refers to the intestate succession law of the transferor's domicile with respect to a disclaimer of an interest in personal property and refers to the intestate succession law of this state with respect to a disclaimed interest that is real property located in this state. (D) In addition to other applications of this sub-subparagraph (D) that are apparent, the general assembly declares its intent to have the rules of this sub-subparagraph (D) apply with respect to present interests in real property and personal property that are transferred outright or in trust to an individual by a transferor during the lifetime of the transferor where the interest disclaimed would, if not disclaimed, have vested in the individual to whom the property is transferred and would be part of that individual's estate if he or she had died immediately after the transfer. Accordingly, this sub-subparagraph (D) shall be so construed to determine the disposition of the present interest. For purposes of the application of the rules to such present interests, the reference to "immediately before the time of distribution" in sub-subparagraphs (A) and (B) of this subparagraph (IV) shall instead be considered as references to "immediately after the time of distribution". (E) In sub-subparagraph (D) of this subparagraph (IV), "present interest" means an interest that takes effect in possession or enjoyment, if at all, at the time of its creation. (d) Upon the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately Colorado Revised Statutes 2019 Page 250 of 600 Uncertified Printout before the time of distribution, but a future interest held by the disclaimant is not accelerated in possession or enjoyment. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 861, § 1, effective August 10. 15-11-1207. Disclaimer of rights of survivorship in jointly held property. (1) Upon the death of a holder of jointly held property, a surviving holder may disclaim, in whole or in part, the incremental portion of the jointly held property devolving to the surviving holder by right of survivorship. (2) A disclaimer pursuant to subsection (1) of this section takes effect as of the death of the holder of jointly held property to whose death the disclaimer relates. (3) In the event of a disclaimer pursuant to subsection (1) of this section with only one holder surviving the death of the holder to whose death the disclaimer relates, the incremental portion disclaimed shall, as a consequence of the disclaimer, pass as part of the estate of the deceased holder. (4) In the event of a disclaimer pursuant to subsection (1) of this section with two or more of the holders surviving the death of the holder to whose death the disclaimer relates: (a) The disclaimer does not sever the joint tenancy with respect to the jointly held property as among the surviving holders; (b) The incremental portion disclaimed shall, as a consequence of a disclaimer, devolve to the surviving holders in proportion to their respective interests in the jointly held property excluding the disclaimant and any other surviving holder who disclaims to the extent of his or her disclaimer of the incremental portion; (c) An incremental portion devolving to a surviving holder, as a consequence of one or more disclaimers, may be disclaimed by the surviving holder; (d) To the extent that all of the surviving holders disclaim an incremental portion devolving to them, the portion shall instead pass as part of the estate of the deceased holder; and (e) The proportion of each of the surviving holders with respect to the jointly held property shall be adjusted to take into account the devolution of the incremental portion to the extent that the portion is disclaimed. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 863, § 1, effective August 10. 15-11-1208. Disclaimer of interest by trustee. If a trustee disclaims an interest in property that otherwise would have become trust property, the interest does not become trust property. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 864, § 1, effective August 10. 15-11-1209. Disclaimer of power of appointment or other power not held in fiduciary capacity. (1) If a holder disclaims a power of appointment or other power not held in a fiduciary capacity, the disclaimer applies only to that holder, and the following rules apply: Colorado Revised Statutes 2019 Page 251 of 600 Uncertified Printout (a) If the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable; (b) If the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the last exercise of the power; and (c) The instrument creating the power is construed as if the power expired when the disclaimer became effective. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 864, § 1, effective August 10. 15-11-1210. Disclaimer by appointee, object, or taker in default of exercise of power of appointment. (1) A disclaimer of an interest in property by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable. (2) A disclaimer of an interest in property by an object or taker in default of an exercise of a power of appointment takes effect as of the time the instrument creating the power becomes irrevocable. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 864, § 1, effective August 10. 15-11-1211. Disclaimer of power held in fiduciary capacity. (1) If a fiduciary disclaims a power held in a fiduciary capacity that has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable. (2) If a fiduciary disclaims a power held in a fiduciary capacity that has been exercised, the disclaimer takes effect immediately after the last exercise of the power. (3) A disclaimer pursuant to this section is effective as to another fiduciary if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 864, § 1, effective August 10. 15-11-1212. Delivery or filing. (1) As used in this section, "beneficiary designation" means an instrument, other than an instrument creating a trust, naming the beneficiary of: (a) An annuity or insurance policy; (b) An account with a designation for payment on death; (c) A security registered in beneficiary form; (d) A pension, profit-sharing, retirement, or other employment-related benefit plan; or (e) Any other nonprobate transfer at death. (2) Subject to subsections (3) to (15) of this section, delivery of a disclaimer may be effected by personal delivery, first class mail, or any other method likely to result in its receipt. (3) In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust: Colorado Revised Statutes 2019 Page 252 of 600 Uncertified Printout (a) A disclaimer shall be delivered to the personal representative of the decedent's estate; or (b) If no personal representative is then serving, a disclaimer shall be filed with a court having jurisdiction to appoint a personal representative. (4) In the case of an interest in a testamentary trust: (a) A disclaimer shall be delivered to the trustee then serving or, if no trustee is then serving, to the personal representative of the decedent's estate; or (b) If no personal representative is then serving, the disclaimer shall be filed with a court having jurisdiction to enforce the trust. (5) In the case of an interest in an inter vivos trust: (a) A disclaimer shall be delivered to the trustee then serving; (b) If no trustee is then serving, the disclaimer shall be filed with a court having jurisdiction to enforce the trust; or (c) If the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it shall be delivered to the settlor of a revocable trust or the transferor of the interest. (6) In the case of an interest created by a beneficiary designation made before the time the designation becomes irrevocable, a disclaimer shall be delivered to the person making the beneficiary designation. (7) In the case of an interest created by a beneficiary designation made after the time the designation becomes irrevocable, a disclaimer shall be delivered to the person obligated to distribute the interest. (8) In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer shall be delivered to the person to whom the disclaimed interest passes. (9) In the case of a disclaimer by an object or taker in default of exercise of a power of appointment at any time after the power was created: (a) The disclaimer shall be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power; or (b) If no fiduciary is then serving, the disclaimer shall be filed with a court having authority to appoint a fiduciary. (10) In the case of a disclaimer by an appointee of a nonfiduciary power of appointment: (a) The disclaimer shall be delivered to the holder, the personal representative of the holder's estate, or to the fiduciary under the instrument that created the power; or (b) If no fiduciary is then serving, the disclaimer shall be filed with a court having authority to appoint a fiduciary. (11) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer shall be delivered as provided for in subsection (3), (4), or (5) of this section, as if the power disclaimed were an interest in property. (12) In the case of a disclaimer of a power by an agent, the disclaimer shall be delivered to the principal or the principal's agent, guardian, or conservator. (13) In the case of a disclaimer of a power not held in a fiduciary capacity, the disclaimer shall be delivered to the fiduciary under the instrument that created the power, or to the person obligated to distribute the property. (14) Except as provided for in subsections (3) to (8) of this section, in the case of an interest the disposition of which is determined pursuant to section 15-11-1206 (2)(c)(IV), the disclaimer shall be delivered or filed as follows: Colorado Revised Statutes 2019 Page 253 of 600 Uncertified Printout (a) Delivered to the transferor of the interest if the transferor is then living; (b) Delivered to the personal representative of the estate of the transferor, if the transferor is not then living; or (c) Filed with a court having jurisdiction to appoint a personal representative for the estate of the transferor, if the transferor is not then living and a personal representative of the estate of the transferor is not then serving. (15) In the case of a disclaimer of an interest in real property in which the disclaimant has a recorded interest, a copy of the disclaimer shall be recorded in the office of the clerk and recorder of the county in which the interest disclaimed is located. For purposes of this subsection (15) and section 15-11-1215, "recorded interest" means an interest in real property that has been recorded in the office of the county clerk and recorder of the county in which the real property is located. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 865, § 1, effective August 10. 15-11-1213. When disclaimer barred or limited. (1) A disclaimer is barred by a written waiver of the right to disclaim. (2) A disclaimer of an interest in property is barred if any of the following events occur before the disclaimer becomes effective: (a) The disclaimant accepts the interest sought to be disclaimed; (b) The disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so; or (c) A judicial sale of the interest sought to be disclaimed occurs. (3) A disclaimer, in whole or in part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise. (4) A disclaimer, in whole or in part, of the future exercise of a power not held in a fiduciary capacity is not barred by its previous exercise unless the power is exercisable in favor of the disclaimant. (5) A disclaimer is barred or limited if so provided by law other than this part 12. (6) A disclaimer of a power over property that is barred by this section is ineffective. A disclaimer of an interest in property that is barred by this section takes effect as a transfer of the interest disclaimed to the persons who would have taken the interest under this part 12 had the disclaimer not been barred. (7) Notwithstanding any other provision in this part 12, this part 12 shall not modify the construction of law or application of law with respect to: (a) A disqualification of medical assistance benefits under title 25.5, C.R.S., to a disclaimant who is or was an applicant for or recipient of such benefits; or (b) A recovery from the estate of a deceased recipient of such medical assistance benefits. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 867, § 1, effective August 10. Colorado Revised Statutes 2019 Page 254 of 600 Uncertified Printout 15-11-1214. Tax-qualified disclaimer. Notwithstanding any other provision of this part 12, if, as a result of a disclaimer or transfer, the disclaimed or transferred interest is treated pursuant to the provisions of title 26 of the United States internal revenue code, as now or hereafter amended, or any successor statute thereto, and the regulations promulgated thereunder, as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer pursuant to this part 12. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 868, § 1, effective August 10. 15-11-1215. Filing or registering of disclaimer. If an instrument transferring an interest in or power over property subject to a disclaimer is required or permitted by law to be filed or registered, the disclaimer may be filed or registered. Failure to file or register the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer, provided, however, that a disclaimer of an interest in real property in which the disclaimant has a recorded interest is not effective and therefore is not valid as between any persons until a copy of the disclaimer is recorded in section 15-11-1212 (15). Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 868, § 1, effective August 10. L. 2013: Entire section amended, (HB 13-1300), ch. 316, p. 1675, § 37, effective August 7. 15-11-1216. Application to existing relationships. Except as otherwise provided for in section 15-11-1213, an interest in or power over property existing on August 10, 2011, for which the time for delivering or filing a disclaimer under law superseded by this part 12 has not expired may be disclaimed after August 10, 2011. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 868, § 1, effective August 10. 15-11-1217. Uniformity of application and construction. In applying and construing this part 12, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 868, § 1, effective August 10. 15-11-1218. Severability. If any provision of this part 12 or its application to any person or circumstance is held invalid, the invalidity shall not affect any other provision or application of this part 12 that can be given effect without the invalid provision or application. Source: L. 2011: Entire part added, (SB 11-166), ch. 203, p. 868, § 1, effective August 10. ARTICLE 12 Colorado Revised Statutes 2019 Page 255 of 600 Uncertified Printout Probate of Wills and Administration Editor's note: For historical information concerning the repeal and reenactment of articles 10 to 17 of this title, see the editor's note immediately preceding article 10. PART 1 GENERAL PROVISIONS 15-12-101. Devolution of estate at death; restrictions. The power of a person to leave property by will and the rights of creditors, devisees, and heirs to his property are subject to the restrictions and limitations contained in this code to facilitate the prompt settlement of estates. Upon the death of a person, his real and personal property devolves to the persons to whom it is devised by his last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of the testate estate or, in the absence of testamentary disposition, to his heirs or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to exempt property and family allowances, rights of creditors, elective share of the surviving spouse, and administration. Source: L. 73: R&RE, p. 1565, § 1. C.R.S. 1963: § 153-3-101. L. 75: Entire section amended, p. 594, § 22, effective July 1. Cross references: For intestate succession, see article 11 of this title; for the elective share of a surviving spouse, see § 15-11-201; for exempt property allowance and family allowance, see §§ 15-11-403 and 15-11-404, respectively; for lapse of a devise, see § 15-11-511 (3); for renunciation of succession, see the "Uniform Disclaimer of Property Interests Act", part 12 of article 11 of this title; for rights of creditors, see part 8 of this article. 15-12-102. Necessity of order of probate for will. Except as provided in sections 1512-901, 15-12-1201, 15-13-204, and 15-13-205 and in part 13 of this article, to be effective to prove the transfer of any property or to nominate a personal representative, a will must be declared to be valid by an order of informal probate by the registrar, or an adjudication of probate by the court. Source: L. 73: R&RE, p. 1565, § 1. C.R.S. 1963: § 153-3-102. L. 2011: Entire section amended, (SB 11-083), ch. 101, p. 303, § 4, effective August 10. L. 2014: Entire section amended, (HB 14-1322), ch. 296, p. 1234, § 4, effective August 6. 15-12-103. Necessity of appointment for administration. Except as otherwise provided in article 13 of this title, to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court or registrar, qualify, and be issued letters. Administration of an estate is commenced by the issuance of letters. Colorado Revised Statutes 2019 Page 256 of 600 Uncertified Printout Source: L. 73: R&RE, p. 1565, § 1. C.R.S. 1963: § 153-3-103. 15-12-104. Claims against decedent. No claim may be presented and no proceeding to enforce a claim against the estate of a decedent or his or her successors may be revived or commenced before the appointment of a personal representative, except as permitted by section 15-12-804. After the appointment and until distribution, all proceedings and actions to enforce a claim against the estate are governed by the procedure prescribed by this article. After distribution, a creditor whose claim has not been barred may recover from the distributees as provided in section 15-12-1004 or from a former personal representative individually liable as provided in section 15-12-1005. This section has no application to a proceeding by a secured creditor of the decedent to enforce his or her right to his or her security except as to any deficiency judgment that might be sought therein. Source: L. 73: R&RE, p. 1565, § 1. C.R.S. 1963: § 153-3-104. L. 2006: Entire section amended, p. 373, § 1, effective July 1. 15-12-105. Proceedings affecting devolution and administration - jurisdiction of subject matter. Persons interested in decedents' estates may apply to the registrar for determination in the informal proceedings provided in this article and may petition the court for orders in formal proceedings within the court's jurisdiction. The court has jurisdiction as provided in section 15-10-302. Source: L. 73: R&RE, p. 1566, § 1. C.R.S. 1963: § 153-3-105. 15-12-106. Proceedings within the exclusive jurisdiction of court - service jurisdiction over persons. In proceedings where notice is required by this code or by rule, interested persons may be bound by the orders of the court in respect to property in or subject to the laws of this state by notice in conformity with section 15-10-401. An order is binding as to all who are given notice of the proceeding though less than all interested persons are notified. Source: L. 73: R&RE, p. 1566, § 1. C.R.S. 1963: § 153-3-106. 15-12-107. Scope of proceedings - proceedings independent - exception. (1) Unless supervised administration as described in part 5 of this article is involved: (a) Each proceeding before the court or registrar is independent of any other proceeding involving the same estate; (b) Petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay. Except as required for proceedings which are particularly described by other sections of this article, no petition is defective because it fails to embrace all matters which might then be the subject of a final order; (c) Proceedings for probate of wills or adjudications of no will may be combined with proceedings for appointment of personal representatives; and (d) A proceeding for appointment of a personal representative is concluded by an order making or declining the appointment. Colorado Revised Statutes 2019 Page 257 of 600 Uncertified Printout Source: L. 73: R&RE, p. 1566, § 1. C.R.S. 1963: § 153-3-107. 15-12-108. Probate, testacy, and appointment proceedings - ultimate time limit. (1) No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator's domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than three years after the decedent's death, except: (a) If a previous proceeding was dismissed because of doubt about the fact of the decedent's death, appropriate probate, appointment, or testacy proceedings may be maintained at any time thereafter upon a finding that the decedent's death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceedings; (b) Appropriate probate, appointment, or testacy proceedings may be maintained in relation to the estate of an absent, disappeared, or missing person for whose estate a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person; and (c) A proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful may be commenced within the later of twelve months from the informal probate or three years from the decedent's death. (2) These limitations do not apply to: (a) Proceedings to construe probated wills; or (b) Proceedings to determine heirs of an intestate and related appointment proceedings; or (c) Appointment proceedings and testacy proceedings if no previous testacy proceedings or proceedings determining heirship relating to the decedent's estate have been concluded in this state. (3) In cases under subsection (1) of this section, the date on which a testacy or appointment proceeding is properly commenced shall be deemed to be the date of the decedent's death for purpose of other limitation provisions of this code which relate to the date of death. Source: L. 73: R&RE, p. 1566, § 1. C.R.S. 1963: § 153-3-108. L. 77: (2) R&RE, p. 833, § 14, effective July 1. L. 79: (2)(b) and (2)(c) amended, p. 657, § 1, effective May 25. 15-12-109. Statutes of limitations on decedent's cause of action. No statute of limitations running on a cause of action belonging to a decedent which had not been barred as of the date of his death shall apply to bar a cause of action surviving the decedent's death sooner than one year after death. A cause of action which, but for this section, would have been barred less than one year after death is barred after one year unless tolled. Source: L. 73: R&RE, p. 1567, § 1. C.R.S. 1963: § 153-3-109. L. 79: Entire section amended, p. 629, § 2, effective July 1. PART 2 Colorado Revised Statutes 2019 Page 258 of 600 Uncertified Printout VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO ADMINISTER; DEMAND FOR NOTICE 15-12-201. Venue for first and subsequent estate proceedings - location of property. (1) Venue for the first informal or formal testacy or appointment proceedings after a decedent's death is: (a) In the county where the decedent had his domicile or his residence at the time of his death; or (b) If the decedent was not domiciled in nor a resident of this state, in any county where property of the decedent was located at the time of his death. (2) Venue for all subsequent proceedings within the exclusive jurisdiction of the court is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in section 15-10-303 or subsection (3) of this section. (3) If the first proceeding was informal, on application of an interested person and after notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere, may transfer the proceeding and the file to the other court. (4) For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving nondomiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a nondomiciliary, is located where the debtor resides or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued. Source: L. 73: R&RE, p. 1567, § 1. C.R.S. 1963: § 153-3-201. L. 77: (1)(a) amended, p. 833, § 15, effective July 1. L. 96: (1)(b) amended, p. 659, § 10, effective July 1. 15-12-202. (Reserved) 15-12-203. Priority among persons seeking appointment as personal representative. (1) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order: (a) The person with priority as determined by a probated will including a person nominated by a power conferred in a will; (b) The surviving spouse of the decedent who is a devisee of the decedent; (b.3) The surviving party to a civil union entered into in accordance with article 15 of title 14, C.R.S., who is a devisee of the decedent; (b.5) A person given priority to be a personal representative in a designated beneficiary agreement made pursuant to article 22 of this title; (c) Other devisees of the decedent; (d) The surviving spouse of the decedent; (d.5) The surviving party to a civil union entered into in accordance with article 15 of title 14, C.R.S.; (e) Other heirs of the decedent; (f) Forty-five days after the death of the decedent, any creditor. Colorado Revised Statutes 2019 Page 259 of 600 Uncertified Printout (2) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in subsection (1) of this section apply, except that: (a) If the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person; (b) In case of objection to appointment of a person, other than one whose priority is determined by will, by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value or, in default of this accord, any suitable person. (3) A person entitled to letters under paragraphs (b) to (e) of subsection (1) of this section and a person between the ages of eighteen and twenty-one who would be entitled to letters but for his age may nominate a qualified person to act as personal representative. Any person eighteen years of age or older may renounce his right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them or in applying for appointment. (4) Conservators of the estates of protected persons or, if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person may exercise the same right to nominate, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment. (5) Appointment of a person with priority, a person who is nominated pursuant to subsection (3) of this section, or a person whose entitlement to appointment results from renunciation by another person with priority may be made in an informal proceeding. Before formal appointment of one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment and that administration is necessary. (6) No person is qualified to serve as a personal representative who is: (a) Under the age of twenty-one; (b) A person whom the court finds unsuitable in formal proceedings. (7) A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative. (8) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator. (9) If there be more than one fiduciary of an estate, and one of such fiduciaries shall die, resign, or be removed, the court may in its discretion appoint a successor fiduciary to act in place and instead of the former fiduciary, together with the remaining fiduciary or fiduciaries, or the court may permit the remaining fiduciary or fiduciaries to serve without any new or additional fiduciary; except that, if there be a will providing for the fiduciaries, the provisions of the will shall control when applicable. Colorado Revised Statutes 2019 Page 260 of 600 Uncertified Printout Source: L. 73: R&RE, p. 1567, § 1. C.R.S. 1963: § 153-3-203. L. 91: (5) amended, p. 1449, § 10, effective July 1. L. 93: (2)(b) and (5) amended, p. 513, § 2, effective July 1. L. 2009: (1) amended, (HB 09-1260), ch. 107, p. 444, § 10, effective July 1. L. 2010: (1)(b.5) amended, (SB 10-199), ch. 374, p. 1751, § 13, effective July 1. L. 2013: (1) amended, (SB 13-011), ch. 49, p. 164, § 18, effective May 1. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-12-204. Demand for notice of order or filing concerning decedent's estate. Any person desiring notice of any order or filing pertaining to a decedent's estate in which he has a financial or property interest may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant's address or that of his attorney. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice as prescribed in section 1510-401 to the demandant or his attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of his interest in the estate. Source: L. 73: R&RE, p. 1569, § 1. C.R.S. 1963: § 153-3-204. PART 3 INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS 15-12-301. Informal probate or appointment proceedings - application - contents. (1) Applications for informal probate or informal appointment shall be directed to the registrar and verified by the applicant to be accurate and complete to the best of his knowledge and belief as to the information required by this section. (2) Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following: (a) A statement of the interest of the applicant; (b) The name and date of death of the decedent, his age, and the county and state of his domicile at the time of death, and the names and addresses of the spouse, children, heirs, and devisees, and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant; (c) If the decedent was not domiciled in the state at the time of his death, a statement showing venue; (d) A statement identifying and indicating the address of any personal representative of the decedent appointed in this state or elsewhere whose appointment has not been terminated; Colorado Revised Statutes 2019 Page 261 of 600 Uncertified Printout (e) A statement indicating whether the applicant has received a demand for notice or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere; (f) A statement indicating that the time limit for informal probate or appointment provided in this article has not expired either because three years or less have passed since the decedent's death or, if more than three years have passed since the decedent's death, because the circumstances described in section 15-12-108 authorizing tardy probate or appointment have occurred. (3) An application for informal probate of a will shall state the following in addition to the statements required by subsection (2) of this section: (a) That the original of the decedent's last will is in the possession of the court, or accompanies the application, or that an authenticated copy of a will probated in another jurisdiction accompanies the application; (b) That the applicant, to the best of his knowledge, believes the will to have been validly executed; (c) That after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent's last will. (d) Repealed. (4) An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall adopt the statements in the application or petition for probate and state the name, address, and priority for appointment of the person whose appointment is sought. (5) An application for informal appointment of an administrator in intestacy shall state, in addition to the statements required by subsection (2) of this section: (a) That after the exercise of reasonable diligence, the applicant is unaware of any unrevoked will relating to property having a situs in this state under section 15-10-301 or a statement why any such will of which he may be aware is not being probated; (b) The priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under section 15-12-203. (6) An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant. (7) An application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in section 15-12-610 (3) or whose appointment has been terminated by death or removal shall adopt the statements in the application or petition which led to the appointment of the person being succeeded except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant. Source: L. 73: R&RE, p. 1569, § 1. C.R.S. 1963: § 153-3-301. L. 77: (2)(f) amended and (3)(d) repealed, pp. 833, 837, §§ 16, 27, effective July 1. Colorado Revised Statutes 2019 Page 262 of 600 Uncertified Printout 15-12-302. Informal probate - duty of registrar - effect of informal probate. Upon receipt of an application requesting informal probate of a will, the registrar, upon making the findings required by section 15-12-303, shall issue a written statement of informal probate. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal probate of a will renders the probate void. Source: L. 73: R&RE, p. 1571, § 1. C.R.S. 1963: § 153-3-302. 15-12-303. Informal probate - proof and findings required. (1) In an informal proceeding for original probate of a will, the registrar shall determine that: (a) The application is complete; (b) The applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief; (c) The applicant appears from the application to be an interested person as defined in section 15-10-201 (27); (d) On the basis of the statements in the application, venue is proper; (e) An original, duly executed, and apparently unrevoked will is in the registrar's possession; (f) Any notice required by section 15-12-204 has been given and that the application is not within section 15-12-304; (g) It appears from the application that the time limit for original probate has not expired; and (h) One hundred twenty hours have elapsed since decedent's death. (2) The application shall be denied if it indicates that a personal representative has been appointed in another county of this state or, except as provided in subsection (4) of this section, if it appears that this or another will of the decedent has been the subject of a previous probate order. (3) A will which appears to have the required signatures and which contains an attestation clause showing that requirements of execution under section 15-11-502, 15-11-503, or 15-11-506 have been met shall be probated without further proof. In other cases, the registrar may assume execution if the will appears to have been properly executed, or he may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will. (4) Informal probate of a will which has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where it was first probated. (5) A will from a place which does not provide for probate of a will after death and which is not eligible for probate under subsection (1) of this section may be probated in this state upon receipt by the registrar of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place. Colorado Revised Statutes 2019 Page 263 of 600 Uncertified Printout Source: L. 73: R&RE, p. 1571, § 1. C.R.S. 1963: § 153-3-303. L. 94: (1)(c) amended, p. 1037, § 9, effective July 1, 1995. Cross references: For establishment of lost or destroyed will, see § 15-12-402 (3). 15-12-304. Informal probate - unavailable in certain cases. [Editor's note: This version of this section is effective until January 1, 2021.] Applications for informal probate which relate to one or more of a known series of testamentary instruments (other than a will and one or more codicils thereto), the latest of which does not expressly revoke the earlier, shall be declined. 15-12-304. Informal probate - unavailable in certain cases. [Editor's note: This version of this section is effective January 1, 2021.] (1) Applications for informal probate that relate to any of the following must be declined: (a) One or more of a known series of testamentary instruments, other than a will and one or more codicils thereto, the latest of which does not expressly revoke the earlier; or (b) A copy of the decedent's original will certified by the state court administrator pursuant to article 23 of this title 15. Source: L. 73: R&RE, p. 1572, § 1. C.R.S. 1963: § 153-3-304. L. 77: Entire section amended, p. 834, § 17, effective July 1. L. 2019: Entire section R&RE, (HB 19-1229), ch. 252, p. 2446, § 3, effective January 1, 2021. 15-12-305. Informal probate - registrar not satisfied. If the registrar is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of sections 15-12-303 and 15-12-304 or any other reason, he may decline the application. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings. Source: L. 73: R&RE, p. 1572, § 1. C.R.S. 1963: § 153-3-305. 15-12-306. Informal probate - notice and information requirements. The moving party must give notice as described by section 15-10-401 of his application for informal probate to any person demanding it pursuant to section 15-12-204 and to any personal representative of the decedent whose appointment has not been terminated. If a personal representative has not been appointed, then not later than thirty days after a will has been informally probated the moving party shall give information of the probate to the persons and in the manner prescribed by section 15-12-705 and shall promptly file with the court a statement that such information has been given, to whom, and at what addresses, if mailed. No other notice of informal probate is required. Source: L. 73: R&RE, p. 1572, § 1. C.R.S. 1963: § 153-3-306. L. 75: Entire section amended, p. 595, § 23, effective July 1. Colorado Revised Statutes 2019 Page 264 of 600 Uncertified Printout 15-12-307. Informal appointment proceedings - delay in order - duty of registrar effect of appointment. (1) Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in section 15-12-614, the registrar, after making the findings required by section 15-12-308, shall appoint the applicant subject to qualification and acceptance; except that, if the decedent was a nonresident, the registrar shall delay the order of appointment until thirty days have elapsed since death unless the personal representative appointed at the decedent's domicile is the applicant, or unless the decedent's will directs that his estate be subject to the laws of this state. (2) The status of personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created thereby, is subject to termination as provided in sections 15-12-608 to 1512-612, but is not subject to retroactive vacation. Source: L. 73: R&RE, p. 1572, § 1. C.R.S. 1963: § 153-3-307. 15-12-308. Informal appointment proceedings - proof and findings required. (1) In informal appointment proceedings, the registrar must determine that: (a) The application for informal appointment of a personal representative is complete; (b) The applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief; (c) The applicant appears from the application to be an interested person as defined in section 15-10-201 (27); (d) On the basis of the statements in the application, venue is proper; (e) Any will to which the requested appointment relates has been formally or informally probated; but this requirement does not apply to the appointment of a special administrator; (f) Any notice required by section 15-12-204 has been given; (g) From the statements in the application, the person whose appointment is sought has priority entitling him to the appointment; (h) One hundred twenty hours have elapsed since the decedent's death. (2) Unless section 15-12-612 controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in section 15-12-610 (3) has been appointed in this or another county of this state, that (unless the applicant is the domiciliary personal representative or his nominee) the decedent was not domiciled in this state and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met. Source: L. 73: R&RE, p. 1572, § 1. C.R.S. 1963: § 153-3-308. L. 94: (1)(c) amended, p. 1037, § 10, effective July 1, 1995. 15-12-309. Informal appointment proceedings - registrar not satisfied. If the registrar is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of sections 15-12-307 and 15-12-308 or for any other reason, he may decline the application. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings. Colorado Revised Statutes 2019 Page 265 of 600 Uncertified Printout Source: L. 73: R&RE, p. 1573, § 1. C.R.S. 1963: § 153-3-309. 15-12-310. Informal appointment proceedings - notice requirements. (1) The moving party must give notice as described by section 15-10-401 of his intention to seek an appointment informally: (a) To any person demanding it pursuant to section 15-12-204; and (b) To any person having a prior or equal right to appointment not waived in writing and filed with the court. (2) No other notice of an informal appointment proceeding is required. Source: L. 73: R&RE, p. 1573, § 1. C.R.S. 1963: § 153-3-310. 15-12-311. Informal appointment unavailable in certain cases. If an application for informal appointment indicates the existence of a possible unrevoked will which may relate to property subject to the laws of this state and which is not filed for probate in this court, the registrar shall decline the application. Source: L. 73: R&RE, p. 1573, § 1. C.R.S. 1963: § 153-3-311. PART 4 FORMAL TESTACY AND APPOINTMENT PROCEEDINGS Law reviews: For article, "Will Contests -- Some Procedural Aspects", see 15 Colo. Law. 787 (1986). 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 Colorado Revised Statutes 2019 Page 266 of 600 Uncertified Printout 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. 15-12-402. Formal testacy or appointment proceedings - petition - contents. (1) [Editor's note: This version of the introductory portion to (1) is effective until January 1, 2021.] Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will shall: (1) [Editor's note: This version of the introductory portion to (1) is effective January 1, 2021.] Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will must: (a) Request an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs; (b) Contain the statements required for informal applications as stated in section 15-12301 (2) and the statements required by section 15-12-301 (3); and (c) [Editor's note: This version of this subsection (1)(c) is effective until January 1, 2021.] State whether the original of the last will of the decedent is in the possession of the court or accompanies the petition. (c) [Editor's note: This version of this subsection (1)(c) is effective January 1, 2021.] (c) State whether the original of the last will of the decedent, or a copy of the decedent's original will certified by the state court administrator pursuant to article 23 of this title 15, is in the possession of the court or accompanies the petition. (2) [Editor's note: This version of this subsection (2) is effective until January 1, 2021.] If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable. (2) [Editor's note: This version of this subsection (2) is effective January 1, 2021.] If the original will, or a copy of the decedent's original will certified by the state court administrator pursuant to article 23 of this title 15, is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable. (3) If a will has been lost or destroyed, or for any other reason is unavailable, and the fact of the execution thereof is established, as herein provided, and the contents thereof are likewise established to the satisfaction of the court, and the court is satisfied that the will has not been revoked by the testator, the court may admit the same to probate and record, as in other cases. In every such case the order admitting such will to probate shall set forth the contents of Colorado Revised Statutes 2019 Page 267 of 600 Uncertified Printout the will at length, and the names of the witnesses by whom the same was proved, and such order shall be recorded in the record of wills. (4) A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by section 15-12-301 (2) and (5), and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case the statements required by section 15-12-301 (5)(b) may be omitted. Source: L. 73: R&RE, p. 1574, § 1. C.R.S. 1963: § 153-3-402. L. 79: (3) amended, p. 649, § 8, effective July 1. L. 2019: IP(1), (1)(c), and (2) amended, (HB 19-1229), ch. 252, p. 2446, § 4, effective January 1, 2021. 15-12-403. Formal testacy proceedings - notice of hearing on petition. (1) (a) Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice shall be given in the manner prescribed by section 15-10-401 by the petitioner to the persons herein enumerated and to any additional person who has filed a demand for notice under section 15-12-204. (b) Notice shall be given to the following persons: The surviving spouse, children, and other heirs of the decedent, the devisees and executors named in any will that is being or has been probated or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the petitioner shall give notice by publication to all unknown persons, if the petitioner has reasonable cause to believe that unknown persons may claim an interest, and to all known persons whose addresses are unknown who have any interest in the matters being litigated. (2) If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on said petition shall be sent by registered or certified mail to the alleged decedent at his last known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods: (a) By inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent; (b) By notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent; (c) By engaging the services of an investigator. The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration. Source: L. 73: R&RE, p. 1575, § 1. C.R.S. 1963: § 153-3-403. L. 77: (1)(b) amended, p. 847, § 1, effective March 26. Colorado Revised Statutes 2019 Page 268 of 600 Uncertified Printout 15-12-404. Formal testacy proceedings - written objections to probate. Any party to a formal proceeding who opposes the probate of a will for any reason shall state in his pleadings his objections to probate of the will. Source: L. 73: R&RE, p. 1575, § 1. C.R.S. 1963: § 153-3-404. 15-12-405. Formal testacy proceedings - uncontested cases - hearings and proof. If a petition in a testacy proceeding is unopposed, the court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of section 15-12-409 have been met, or conduct a hearing in open court and require proof of the matters necessary to support the order sought. If evidence concerning execution of the will is necessary, the affidavit or testimony of one of the attesting witnesses to the instrument is sufficient. If the affidavit or testimony of an attesting witness is not available, execution of the will may be proved by other evidence or affidavit. Source: L. 73: R&RE, p. 1575, § 1. C.R.S. 1963: § 153-3-405. 15-12-406. Formal testacy proceedings - contested cases. (1) In a contested case in which the proper execution of a will is at issue, the following rules apply: (a) If the will is self-proved pursuant to section 15-11-504, the will satisfies the requirements for execution without the testimony of any attesting witness, upon filing the will and the acknowledgment and affidavits annexed or attached to it, unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit. (b) If the will is notarized pursuant to section 15-11-502 (1)(c)(II), but not self-proved, there is a rebuttable presumption that the will satisfies the requirements for execution upon filing the will. (c) If the will is witnessed pursuant to section 15-11-502 (1)(c)(I), but not notarized or self-proved, the testimony of at least one of the attesting witnesses is required to establish proper execution if the witness is within this state, competent, and able to testify. Proper execution may be established by other evidence, including an affidavit of an attesting witness. An attestation clause that is signed by the attesting witnesses raises a rebuttable presumption that the events recited in the clause occurred. Source: L. 73: R&RE, p. 1576, § 1. C.R.S. 1963: § 153-3-406. L. 2009: Entire section amended, (HB 09-1287), ch. 310, p. 1687, § 16, effective July 1, 2010. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-12-407. Formal testacy proceedings - burdens in contested cases. In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. Parties have the ultimate Colorado Revised Statutes 2019 Page 269 of 600 Uncertified Printout burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and, if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate. Source: L. 73: R&RE, p. 1576, § 1. C.R.S. 1963: § 153-3-407. 15-12-408. Formal testacy proceedings - will construction - effect of final order in another jurisdiction. A final order of a court of another state determining testacy or the validity or construction of a will made in a proceeding involving notice to and an opportunity for contest by all interested persons must be accepted as determinative by the courts of this state if it includes, or is based upon, a finding that the decedent was domiciled at his death in the state where the order was made. Source: L. 73: R&RE, p. 1576, § 1. C.R.S. 1963: § 153-3-408. 15-12-409. Formal testacy proceedings - order - foreign will. After the time required for any notice has expired, upon proof of notice, and after any hearing that may be necessary, if the court finds that the testator is dead, venue is proper, and that the proceeding was commenced within the limitation prescribed by section 15-12-108, it shall determine the decedent's domicile at death, his heirs, and his state of testacy. Any will found to be valid and unrevoked shall be formally probated. Termination of any previous informal appointment of a personal representative, which may be appropriate in view of the relief requested and findings, is governed by section 15-12-612. The petition shall be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. A will from a place which does not provide for probate of a will after death may be proved for probate in this state by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become effective under the law of the other place. Source: L. 73: R&RE, p. 1576, § 1. C.R.S. 1963: § 153-3-409. 15-12-410. Formal testacy proceedings - probate of more than one instrument. If two or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. If more than one instrument is probated, the order shall indicate what provisions control in respect to the nomination of an executor, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument. After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of section 15-12-412. Source: L. 73: R&RE, p. 1576, § 1. C.R.S. 1963: § 153-3-410. Colorado Revised Statutes 2019 Page 270 of 600 Uncertified Printout 15-12-411. Formal testacy proceedings - partial intestacy. If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent's estate is or may be partially intestate, the court shall enter an order to that effect. Source: L. 73: R&RE, p. 1577, § 1. C.R.S. 1963: § 153-3-411. 15-12-412. Formal testacy proceedings - effect of order - vacation. (1) Subject to appeal and subject to vacation as provided in this section and in section 15-12-413, a formal testacy order under sections 15-12-409 to 15-12-411, including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs; except that: (a) The court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will were unaware of its existence at the time of the earlier proceeding or were unaware of the earlier proceeding and were given no notice thereof, except by publication; (b) If intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that the persons were unaware of their relationship to the decedent, were unaware of his death, or were given no notice of any proceeding concerning his estate, except by publication; (c) A petition for vacation under either paragraph (a) or (b) of this subsection (1) must be filed prior to the earlier of the following time limits: (I) If a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate, or, if the estate is closed by statement, six months after the filing of the closing statement; (II) Whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by section 15-12-108 when it is no longer possible to initiate an original proceeding to probate a will of the decedent; (III) Twelve months after the entry of the order sought to be vacated. (d) The order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances, by the order of probate of the later-offered will or the order redetermining heirs; (e) The finding of the fact of death is conclusive as to the alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at his last known address and the court finds that a search under section 15-12-403 (2) was made. (2) If the alleged decedent is not dead, even if notice was sent and search was made, he may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is in their hands, or the value of distributions received by them, to the extent that any recovery from distributees is equitable in view of all of the circumstances. An action for recovery from distributees not based Colorado Revised Statutes 2019 Page 271 of 600 Uncertified Printout on fraud or intentional wrongdoing shall not be brought by the alleged decedent or any person claiming through him more than three years from the date of such distribution. In no event shall any recovery be made by the alleged decedent against any person who, in accordance with law and in good faith and for adequate value, purchased or acquired a lien upon property of the alleged decedent. Source: L. 73: R&RE, p. 1577, § 1. C.R.S. 1963: § 153-3-412. 15-12-413. Formal testacy proceedings - vacation of order for other cause. For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal. Source: L. 73: R&RE, p. 1578, § 1. C.R.S. 1963: § 153-3-413. 15-12-414. Formal proceedings concerning appointment of personal representative. (1) A formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as personal representative, or of one who previously has been appointed personal representative in informal proceedings, if an issue concerning the testacy of the decedent is or may be involved, is governed by section 15-12-402, as well as by this section. In other cases, the petition shall contain or adopt the statements required by section 15-12-301 (2) and describe the question relating to priority or qualification of the personal representative which is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter. If the proceeding is commenced after appointment, the previously appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the court orders otherwise. (2) After notice to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative and any person having or claiming priority for appointment as personal representative, the court shall determine who is entitled to appointment under section 15-12-203, make a proper appointment, and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under section 15-12611. Source: L. 73: R&RE, p. 1578, § 1. C.R.S. 1963: § 153-3-414. PART 5 SUPERVISED ADMINISTRATION 15-12-501. Supervised administration - nature of proceedings. Supervised administration is a single in rem proceeding to secure complete administration and settlement of a decedent's estate under the continuing authority of the court which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceeding. A supervised personal representative is responsible to the Colorado Revised Statutes 2019 Page 272 of 600 Uncertified Printout court, as well as to the interested parties, and is subject to directions concerning the estate made by the court on its own motion or on the motion of any interested party. Except as otherwise provided in sections 15-12-502 to 15-12-505, or as otherwise ordered by the court, a supervised personal representative has the same duties and powers as a personal representative who is not supervised. Source: L. 73: R&RE, p. 1578, § 1. C.R.S. 1963: § 153-3-501. 15-12-502. Supervised administration - petition - order. (1) A petition for supervised administration may be filed by any interested person or by a personal representative at any time, or the prayer for supervised administration may be joined with a petition in a testacy or appointment proceeding. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for supervised administration shall include the matters required of a petition in a formal testacy proceeding, and the notice requirements and procedures applicable to a formal testacy proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for supervised administration, even though the request for supervised administration may be denied. (1.5) A supervised administration proceeding may also be initiated by the court upon its own motion after notice and findings as required under subsection (2) of this section. (2) After notice to interested persons, the court shall order supervised administration of a decedent's estate: (a) If the decedent's will directs supervised administration, unless the court finds that circumstances bearing on the need for supervised administration have changed since the execution of the will and that there is no necessity for supervised administration; (b) If the decedent's will directs unsupervised administration such provision shall control unless the personal representative petitions for supervised administration, in which case such petition shall be granted unless the court finds that supervised administration is unnecessary for protection of persons interested in the estate; or (c) In other cases if the court finds that supervised administration is necessary under the circumstances. Source: L. 73: R&RE, p. 1579, § 1. C.R.S. 1963: § 153-3-502. L. 75: (1.5) added, p. 595, § 24, effective July 1. 15-12-503. Supervised administration - effect on other proceedings. (1) The pendency of a proceeding for supervised administration of a decedent's estate stays action on any informal application then pending or thereafter filed. (2) If a will has been previously probated in informal proceedings, the effect of the filing of a petition for supervised administration is as provided for formal testacy proceedings by section 15-12-401. (3) After he has received notice of the filing of a petition for supervised administration, a personal representative who has been appointed previously shall not exercise his power to Colorado Revised Statutes 2019 Page 273 of 600 Uncertified Printout distribute any estate. The filing of the petition does not affect his other powers and duties unless the court restricts the exercise of any of them pending full hearing on the petition. Source: L. 73: R&RE, p. 1579, § 1. C.R.S. 1963: § 153-3-503. 15-12-504. Supervised administration - powers of personal representative. Unless restricted by the court, a supervised personal representative has, without interim orders approving exercise of a power, all powers of personal representatives under this code, but he shall not exercise his power to transfer, surrender, or release estate assets to a distributee without prior order of the court. Any other restriction on the power of a personal representative which may be ordered by the court must be endorsed on his letters of appointment and, unless so endorsed, is ineffective as to persons dealing in good faith with the personal representative. Source: L. 73: R&RE, p. 1579, § 1. C.R.S. 1963: § 153-3-504. L. 75: Entire section amended, p. 595, § 25, effective July 1. 15-12-505. Supervised administration - interim orders - distribution and closing orders. Unless otherwise ordered by the court, supervised administration is terminated by order in accordance with time restrictions, notices, and contents of orders prescribed for proceedings under section 15-12-1001. Interim orders approving or directing partial distributions or granting other relief may be issued by the court at any time during the pendency of a supervised administration on the application of the personal representative or any interested person. Source: L. 73: R&RE, p. 1580, § 1. C.R.S. 1963: § 153-3-505. PART 6 PERSONAL REPRESENTATIVE; APPOINTMENT, CONTROL, AND TERMINATION OF AUTHORITY 15-12-601. Qualification. Prior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office. Source: L. 73: R&RE, p. 1580, § 1. C.R.S. 1963: § 153-3-601. 15-12-602. Acceptance of appointment - consent to jurisdiction. By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be provided to the personal representative pursuant to section 15-10-401. Source: L. 73: R&RE, p. 1580, § 1. C.R.S. 1963: § 153-3-602. L. 2008: Entire section amended, p. 481, § 2, effective July 1. Colorado Revised Statutes 2019 Page 274 of 600 Uncertified Printout 15-12-603. Bond not required without court order - exceptions. (1) No bond is required of a personal representative appointed in informal proceedings, except: (a) Upon the appointment of a special administrator; (b) When an executor or other personal representative is appointed to administer an estate under a will containing an express requirement of bond; or (c) When bond is required under section 15-12-605. (2) Bond may be required by court order at the time of appointment of a personal representative appointed in any formal proceeding; except that bond is not required of a personal representative appointed in formal proceedings if the will relieves the personal representative of bond, unless bond has been requested by an interested party and the court is satisfied that it is desirable. Bond required by any will may be dispensed with in formal proceedings upon determination by the court that it is not necessary. No bond is required of any personal representative who, pursuant to statute, has deposited cash or collateral with an agency of this state to secure performance of his duties. Source: L. 73: R&RE, p. 1580, § 1. C.R.S. 1963: § 153-3-603. L. 77: Entire section R&RE, p. 848, § 1, effective July 1. 15-12-604. Bond amount - security - procedure - reduction. If bond is required and the provisions of the will or order do not specify the amount, unless stated in his application or petition, the person qualifying shall file a statement under oath with the registrar indicating his best estimate of the value of the personal estate of the decedent and of the income expected from the personal and real estate during the next year, and he shall execute and file a bond with the registrar, or give other suitable security, in an amount not less than the estimate. The registrar shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. If the personal representative be a company or association with capital and surplus at least equal to that required by law of a corporate surety, the registrar may excuse a requirement of bond. The registrar may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution (as defined in section 15-15-201) whose deposits are insured to the satisfaction of the court in a manner that prevents their unauthorized disposition. On petition of the personal representative or another interested person, the court may excuse a requirement of bond, increase or reduce the amount of the bond, release sureties, or permit the substitution of another bond with the same or different sureties. Source: L. 73: R&RE, p. 1580, § 1. C.R.S. 1963: § 153-3-604. L. 90: Entire section amended, p. 921, § 6, effective July 1. 15-12-605. Demand for bond by interested person. Subject to the provisions of sections 15-12-603 and 15-12-604, and to a determination by the court that bond is desirable, any person apparently having an interest worth in excess of five thousand dollars, or any creditor having a claim in excess of five thousand dollars, may make a written demand that a personal representative give bond. The demand must be filed with the registrar and a copy mailed to the personal representative, if appointment and qualification have occurred. Thereupon, the court Colorado Revised Statutes 2019 Page 275 of 600 Uncertified Printout may require bond in such amount as it may determine and notify the personal representative to file the same, but the requirement ceases if the person demanding bond ceases to be interested in the estate. After he has received notice and until the filing of the bond or cessation of the requirement of bond, the personal representative shall refrain from exercising any powers of his office except as necessary to preserve the estate. Failure of the personal representative to meet a requirement of bond by giving suitable bond within thirty days after receipt of notice is cause for his removal and appointment of a successor personal representative. Source: L. 73: R&RE, p. 1581, § 1. C.R.S. 1963: § 153-3-605. 15-12-606. Terms and conditions of bonds. (1) The following requirements and provisions apply to any bond required by sections 15-12-604 and 15-12-605: (a) Bonds shall name the people of the state of Colorado as obligee for the benefit of the persons interested in the estate and shall be conditioned upon the faithful discharge by the fiduciary of all duties according to law; (b) Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the personal representative and with each other. The address of sureties shall be stated in the bond. (c) By executing an approved bond of a personal representative, the surety consents to the jurisdiction of the probate court which issued letters to the primary obligator in any proceedings pertaining to the fiduciary duties of the personal representative and naming the surety as a party. Notice of any such proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner. (d) On petition of a successor personal representative, any other personal representative of the same decedent, or any interested person, a proceeding in the court may be initiated against a surety for breach of the obligation of the bond of the personal representative; (e) The bond of the personal representative is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted; (f) Unless expressly stated in the bond to the contrary, no surety shall be liable for any actions of the personal representative taken prior to the date of such bond. (2) No action or proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation. Source: L. 73: R&RE, p. 1581, § 1. C.R.S. 1963: § 153-3-606. L. 75: (1)(f) added, p. 595, § 26, effective July 1. 15-12-607. Order restraining personal representative. (1) On petition of any person who appears to have an interest in the estate, or on its own motion, a court by temporary order may restrain a personal representative pursuant to section 15-10-503. (2) (Deleted by amendment, L. 2008, p. 482, § 3, effective July 1, 2008.) Source: L. 73: R&RE, p. 1582, § 1. C.R.S. 1963: § 153-3-607. L. 2008: Entire section amended, p. 482, § 3, effective July 1. Colorado Revised Statutes 2019 Page 276 of 600 Uncertified Printout 15-12-608. Termination of appointment - general. Termination of appointment of a personal representative occurs as indicated in sections 15-12-609 to 15-12-612. Termination ends the right and power pertaining to the office of personal representative as conferred by this code or any will; except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve him of the duty to preserve assets subject to his control, to account therefor, and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates his authority to represent the estate in any pending or future proceeding. Source: L. 73: R&RE, p. 1582, § 1. C.R.S. 1963: § 153-3-608. Editor's note: Termination under this section does not discharge the personal representative; for discharge, see §§ 15-12-1001 and 15-12-1002. 15-12-609. Termination of appointment - death or disability. The death of a personal representative or the appointment of a conservator for the estate of a personal representative terminates his appointment. Until a duly appointed and qualified successor personal representative or corepresentative has taken possession of the estate possessed and being administered by a deceased or protected personal representative, the representative of the estate of the deceased or protected personal representative, if any, has the duty to protect the estate possessed and being administered by his decedent or ward at the time his appointment terminates, has the power to perform acts necessary for protection, and shall account for and deliver the estate assets to a successor or special personal representative upon his appointment and qualification, or to any remaining corepresentative. Source: L. 73: R&RE, p. 1582, § 1. C.R.S. 1963: § 153-3-609. 15-12-610. Termination of appointment - voluntary. (1) An appointment of a personal representative terminates as provided in section 15-12-1003 one year after the filing of a closing statement. (2) An order closing an estate as provided in section 15-12-1001 or 15-12-1002 terminates an appointment of a personal representative. (3) A personal representative may resign his or her position by filing a written statement of resignation with the registrar after he or she has given at least fourteen days' written notice to the persons known to be interested in the estate. If the person resigning is a sole representative and if no one applies or petitions for appointment of a successor representative within the time indicated in the notice, the filed statement of resignation is ineffective as a termination of appointment and in any event is effective only upon the appointment and qualification of a successor representative and delivery of the assets to him or her. If the person resigning is a corepresentative, such resignation is effective only upon delivery of the assets in his or her possession to any remaining corepresentatives. Colorado Revised Statutes 2019 Page 277 of 600 Uncertified Printout Source: L. 73: R&RE, p. 1582, § 1. C.R.S. 1963: § 153-3-610. L. 2012: (3) amended, (SB 12-175), ch. 208, p. 837, § 43, effective July 1. 15-12-611. Termination of appointment by removal - cause - procedure. (1) The court shall have the power to remove a personal representative for cause at any time. Removal proceedings shall be governed by the provisions of section 15-10-503. (2) Unless the decedent's will directs otherwise, a personal representative appointed at the decedent's domicile, incident to securing appointment of himself or herself or his or her nominee as ancillary personal representative, may obtain removal of another who was appointed personal representative in this state to administer local assets. Source: L. 73: R&RE, p. 1582, § 1. C.R.S. 1963: § 153-3-611. L. 2008: Entire section amended, p. 482, § 4, effective July 1. 15-12-612. Termination of appointment - change of testacy status. Except as otherwise ordered in formal proceedings, the probate of a will subsequent to the appointment of a personal representative in intestacy or under a will which is superseded by formal probate of another will, or the vacation of an informal probate of a will subsequent to the appointment of the personal representative thereunder, does not terminate the appointment of the personal representative although his powers may be reduced as provided in section 15-12-401. Termination occurs upon appointment in informal or formal appointment proceedings of a person entitled to appointment under the later assumption concerning testacy. If no request for new appointment is made within thirty days after expiration of time for appeal from the order in formal testacy proceedings, or from the informal probate, changing the assumption concerning testacy, the previously appointed personal representative upon request may be appointed personal representative under the subsequently probated will, or as in intestacy as the case may be. Source: L. 73: R&RE, p. 1583, § 1. C.R.S. 1963: § 153-3-612. 15-12-613. Successor personal representative. Parts 3 and 4 of this article govern proceedings for appointment of a personal representative to succeed one whose appointment has been terminated. After appointment and qualification, a successor personal representative may be substituted in all actions and proceedings to which the former personal representative was a party, and no notice, process, or claim which was given or served upon the former personal representative need be given to or served upon the successor in order to preserve any position or right the person giving the notice or filing the claim may thereby have obtained or preserved with reference to the former personal representative. Except as otherwise ordered by the court, the successor personal representative has the powers and duties in respect to the continued administration which the former personal representative would have had if his appointment had not been terminated. Source: L. 73: R&RE, p. 1583, § 1. C.R.S. 1963: § 153-3-613. Colorado Revised Statutes 2019 Page 278 of 600 Uncertified Printout 15-12-614. Special administrator - appointment. (1) A special administrator may be appointed: (a) Informally by the registrar on the application of any interested person when necessary to protect the estate of a decedent prior to the appointment of a general personal representative, or if a prior appointment has been terminated as provided in section 15-12-609; (b) In a formal proceeding by order of the court on the petition of any interested person, or by the court on the court's own motion, and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration including its administration in circumstances where a general personal representative cannot or should not act. If it appears to the court that an emergency exists, appointment may be ordered without notice. Source: L. 73: R&RE, p. 1584, § 1. C.R.S. 1963: § 153-3-614. L. 2007: (1)(b) amended, p. 127, § 5, effective July 1. 15-12-615. Special administrator - who may be appointed. (1) If a special administrator is to be appointed pending the probate of a will which is the subject of a pending application or petition for probate, the person named executor in the will shall be appointed if available and qualified. (2) In other cases, any proper person may be appointed special administrator. Source: L. 73: R&RE, p. 1584, § 1. C.R.S. 1963: § 153-3-615. 15-12-616. Special administrator - appointed informally - powers and duties. A special administrator appointed by the registrar in informal proceedings pursuant to section 1512-614 (1) has the duty to collect and manage the assets of the estate, to preserve them, to account therefor, and to deliver them to the general personal representative upon his qualification. The special administrator has the power of a personal representative under the code necessary to perform his duties. Source: L. 73: R&RE, p. 1584, § 1. C.R.S. 1963: § 153-3-616. 15-12-617. Special administrator - formal proceedings - power and duties. A special administrator appointed by order of the court in any formal proceeding has the power of a general personal representative except as limited in the appointment and duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts, or on other terms as the court may direct. Source: L. 73: R&RE, p. 1584, § 1. C.R.S. 1963: § 153-3-617. 15-12-618. Termination of appointment - special administrator. The appointment of a special administrator terminates in accordance with the provisions of the order of appointment or on the appointment of a general personal representative. In other cases, the appointment of a special administrator is subject to termination as provided in sections 15-12-608 to 15-12-611. Source: L. 73: R&RE, p. 1584, § 1. C.R.S. 1963: § 153-3-618. Colorado Revised Statutes 2019 Page 279 of 600 Uncertified Printout 15-12-619. Public administrator - appointment - oath - bond - deputy. (1) The district or probate court in each judicial district may appoint a person who shall be known as the public administrator. The appointee shall be a qualified elector over twenty-one years of age and shall be a resident of or maintain a principal place of business in the judicial district in which the appointee is to act as public administrator. Unless authorized by the appointing court, the appointee shall remain a resident of or maintain a principal place of business in the judicial district in which the appointee has been appointed during the period in which the appointee holds the office of public administrator. The person appointed as the public administrator shall serve at the pleasure of the appointing court until discharged by the court or until such person's resignation is accepted by the appointing court. Any person appointed as a public administrator shall not be considered an employee of either the state of Colorado or of the judicial district or the city or the county in which such person has been appointed public administrator because of his or her appointment as public administrator. (2) Before taking office, a public administrator shall take and subscribe an oath, before a district or probate judge of the appointing judicial district, in the following form: I, ___________, in accepting the position of the public administrator in and for the ________ judicial district of the state of Colorado, do solemnly swear (or affirm) that I will support the constitution of the United States and of the state of Colorado, and that I will faithfully perform the duties of the office of public administrator as required by law. (3) If a public administrator is discharged or resigns from office, the public administrator may, at the court's discretion, be permitted to complete the administration of any estate or trust in which the public administrator has been previously appointed, or is acting as the public administrator, at the time of discharge or resignation. (4) Every public administrator shall procure and maintain a general bond in the sum of one hundred thousand dollars covering the public administrator's performance and the performance of the public administrator's employees to the people of the state of Colorado. Such bond shall be conditioned on the faithful discharge of the duties of the office of the public administrator and must be filed in the office of the secretary of state on an annual basis. If the Colorado attorney general finds reasonable grounds to believe that a public administrator has improperly administered a public administrator's estate, the attorney general may sue upon such bond in the name of the people of the state of Colorado to compensate any party harmed by any neglect or wrongful act by a public administrator or the public administrator's employees. In addition to the above general bond, a public administrator may also be required to give such bonds as are required of other fiduciaries. (5) The public administrator is authorized to act as provided in this section and sections 15-12-620, 15-12-621, 15-12-622, and 15-12-623 and as directed by the appointing court. A public administrator may also be appointed as a fiduciary in other cases in any judicial district in the state of Colorado or elsewhere as needed. (6) Subject to the approval and confirmation by the district or probate court in each judicial district, the public administrator may also appoint one or more deputy public administrators. Deputy public administrators must be qualified electors over the age of twentyone. Any deputy public administrator serves at the pleasure of the appointing court and the public administrator in that judicial district until such time as the deputy public administrator is discharged by the court or the public administrator or until the deputy public administrator Colorado Revised Statutes 2019 Page 280 of 600 Uncertified Printout resigns. The resignation of a deputy public administrator is not effective until it is filed with and approved by the appointing court. The deputy public administrator shall act as directed by the public administrator in the deputy public administrator's judicial district. Deputy public administrators are subject to all requirements of public administrators as set forth in this section, including the bond requirement in subsection (4) of this section. (7) Any acting public administrator or deputy public administrator who was appointed prior to July 1, 1991, shall be exempt from the appointment criteria required by this section. Source: L. 73: R&RE, p. 1584, § 1. C.R.S. 1963: § 153-3-619. L. 91: Entire section R&RE, p. 1453, § 1, effective July 1. L. 2006: (1) amended, p. 377, § 6, effective July 1. L. 2018: (4) and (6) amended, (SB 18-165), ch. 101, p. 777, § 1, effective August 8. 15-12-620. Public administrator - responsibility for protecting decedent's estate duty of persons holding property. (1) Upon notification of the death of any person who was either a resident of Colorado, or a nonresident who died owning real or personal property located in Colorado, it shall be the responsibility of the public administrator of the judicial district of the decedent's residence, or, in the case of a nonresident, of the public administrator of the judicial district wherein the decedent's property is located, to take possession of the decedent's property or to take such measures as are reasonably necessary to protect and secure the decedent's property. The public administrator need not act in cases where such property can be protected by a person who is in the vicinity of the property and who is willing and able to provide such protection, if such person is either an heir of the decedent or has apparent authority to act as the personal representative of the decedent's estate as set forth in an original document that reasonably appears to be the last will of the decedent. (2) In appropriate cases, the public administrator shall act as soon as the public administrator receives notice of the decedent's death. The public administrator shall continue to protect the decedent's property until the administration of the decedent's estate is granted to a person or entity by a court of proper jurisdiction or until the public administrator is presented with a properly executed affidavit pursuant to section 15-12-1201. The ten-day waiting period required in section 15-12-1201 (1)(b) shall not apply to affidavits presented to a public administrator to obtain property being protected by a public administrator pursuant to this section. (3) Reasonable administration fees and costs including reasonable attorney fees incurred in efforts to protect the decedent's property shall be paid to the public administrator at the time such property is released by the public administrator. Upon the presentation or mailing of an itemized statement of fees and costs to the person assuming responsibility for the case, the public administrator shall be entitled to deduct such fees and costs from any cash assets of the decedent's estate that are in the public administrator's possession. Any fee dispute regarding a public administrator's fees and costs shall be resolved by petition to the district or probate court that has jurisdiction over the estate. (4) When a person dies leaving property located in any house, residence, or apartment, on the premises of another, or in a nursing home, coroner's office, mortuary, state agency, or public or private hospital, without leaving either a known heir residing in this state or a resident of this state who has been nominated as a personal representative in an original document that reasonably appears to be the last will of the decedent, the person in possession of such house, Colorado Revised Statutes 2019 Page 281 of 600 Uncertified Printout residence, apartment or premises, or the administrator of such nursing home, coroner's office, mortuary, state agency, or public or private hospital, shall give prompt notice of death, and notice of the existence of the property, to the public administrator of that judicial district. Any person who fails to act in compliance with this section shall be liable for all damages and any loss that may be sustained as a result of the neglect or refusal of such person to report the death or the existence of property to the public administrator. Such damages may be recovered by the decedent's heirs or successors, or by the public administrator. It shall be the responsibility of any law enforcement agency, coroner, or other public agency to give notice to the public administrator of the appropriate jurisdiction at any time they believe that property of a decedent located within their jurisdiction is not properly secured or protected. Source: L. 73: R&RE, p. 1585, § 1. C.R.S. 1963: § 153-3-620. L. 75: (4) added, p. 596, § 27, effective July 1. L. 91: Entire section R&RE, p. 1455, § 2, effective July 1. 15-12-621. Public administrator - decedents' estates - areas of responsibility. (1) The public administrator of each judicial district shall be responsible for handling the administration of decedents' estates within such judicial district under the following circumstances: (a) (I) Where the decedent died a resident of that judicial district; or (II) Where the decedent was a nonresident of the state of Colorado and the decedent has property located within that judicial district; and (b) Where no individual can be found who is willing and able to administer the estate of the decedent by virtue of being either nominated to act as a personal representative under the last will of the decedent, or is an heir or devisee of the decedent entitled to receive a portion of the decedent's estate. (2) A public administrator may also administer a decedent's estate within the public administrator's judicial district in cases where the decedent's heirs, devisees, creditors, or nominated personal representative, do not act to evidence their willingness or intention to administer the decedent's estate within sixty days from the date of death, by either: (a) Assuming responsibility for the administration of the estate by use of an affidavit pursuant to sections 15-12-1201 and 15-12-1202; or (b) By filing a petition or application to open the estate in a district or probate court in this state. (3) The grant of authority to a public administrator in this section shall not supersede the normal priority for the appointment of a personal representative as set forth in section 15-12203; except that a public administrator shall have priority for appointment over creditors of the estate. (4) In estates where the location or identity of some or all of the decedent's heirs or devisees is unknown, the requirement for the publication of notice to such persons concerning the petition for the appointment of a public administrator as personal representative or special administrator of the estate shall be waived unless the court otherwise directs. (5) All decedent estates in which the public administrator has been appointed as the personal representative of the estate shall be closed in a formal hearing in accordance with section 15-12-1001. Colorado Revised Statutes 2019 Page 282 of 600 Uncertified Printout (6) Small estates, as defined in section 15-12-1201, may be administered by the public administrator using an affidavit as provided in section 15-12-1201, with the same effect as provided in section 15-12-1202. The claims period ends one year from the date of the decedent's death. At the end of the claims period, the public administrator shall summarily make distribution of estate assets by distribution to allowed claimants pursuant to the priorities set forth in section 15-12-805. The remainder of the estate's funds, if any, must be distributed to the decedent's heirs or devisees as determined under this code. In determining who is entitled to an estate's funds, a public administrator may rely on affidavits by persons who set forth facts to establish their claims, heirship, or the validity of a testamentary document. The public administrator is not liable for any improper distributions made in reasonable reliance on information contained in such affidavits. All estates administered by a public administrator pursuant to the small estate procedure are closed by the filing of a public administrator's statement of account with the appointing district or probate court. The statement of account must set forth all receipts and disbursements made during the administration of the estate, including the public administrator's fees and costs, and the fees and costs of the public administrator's staff and investigators. Copies of all fee statements reflecting such fees and costs must be filed with the statement of the account. Upon filing of the public administrator's statement of account, the public administrator must be discharged and released from all further responsibility and all liability with regards to the estate. (7) In the absence of any interested person willing to make funeral and burial arrangements, a public administrator may make funeral and burial arrangements for the decedent. The public administrator shall make reasonable efforts to see that such arrangements are consistent with the decedent's apparent religious or other preferences regarding such matters. A public administrator may authorize the cremation of the decedent's remains if the decedent left signed written instructions, or other funeral arrangements authorized by the decedent, which indicated the decedent's wish to be cremated. A public administrator shall have the authority to authorize cremation if he believes that public funds will be needed to complete the administration of an estate because the estate lacks the apparent assets to pay fully all necessary administration, funeral, and burial costs and expenses. In cases of doubt the public administrator may decline to authorize cremation. (8) Whenever a public administrator is administering or investigating a decedent's estate, the public administrator or the public administrator's authorized employee or agent may make an immediate search for the decedent's assets and burial instructions; and in furtherance thereof, a public administrator may prepare a certificate stating that he or she is a public administrator administering or investigating the estate of the decedent, that the decedent died on a stated date, and that such person may have assets or a will or burial instructions which are needed for the proper administration of the decedent's estate. Any entity, person, bank, corporation, or financial institution that receives such a certificate shall promptly release to the public administrator, or to the public administrator's authorized employees or agents, all information that such entity has at its disposal concerning any assets in which the decedent had any interest, whether such assets be jointly or individually owned; and any such entity, person, bank, corporation, or financial institution shall promptly grant access to the public administrator, or to the public administrator's authorized employees or agents, to any safe deposit box which the decedent had the right of entry to search and remove any will or burial instructions concerning the decedent's estate. For this preliminary investigation, the public administrator shall not be required to furnish a death Colorado Revised Statutes 2019 Page 283 of 600 Uncertified Printout certificate, an affidavit pursuant to section 15-12-1201, or letters. If a will, codicil, or burial instructions concerning the decedent is discovered as a result of this investigation, upon giving a receipt for same, the public administrator, or the public administrator's authorized employee or agent, shall be entitled to receive the original of such document. The public administrator shall lodge the original of any will or codicil so discovered in the district or probate court having proper jurisdiction. A copy of such instrument shall be provided to any heir or devisee of the decedent who requests it. Any costs incurred in the drilling of a safe deposit box or the copying of any estate documents shall be paid by the estate of the decedent. If any burial instructions are found, the public administrator shall promptly deliver such instructions to the person or persons who have the right to dispose of the decedent's remains. Receipt of a certificate of the public administrator as provided by this section shall fully discharge any entity, person, bank, corporation, or other financial institution from all liability for the release of any information concerning the decedent's assets or the granting of access to a safe deposit box, or for any acts or omissions by the public administrator with reference to these items, without the necessity of inquiring into the truth of any facts stated in the certificate. Any entity, person, bank, corporation, or other financial institution who refuses to honor a properly presented certificate as provided in this section shall be liable for all damages and costs, including reasonable attorney fees and costs, suffered by the estate as a result of the failure of such entity to comply with the public administrator's request for information. (9) A public administrator may act as a special administrator in a decedent's estate when a creditor or claimant requests such an appointment for the purpose of having the public administrator represent the estate in an action to be brought by the creditor or claimant against the estate. A public administrator requested to act as a special administrator in such cases need act only if the creditor or claimant makes advance arrangements, satisfactory to the public administrator, to pay all reasonable fees and costs likely to be incurred by the public administrator in the public administrator's performance as special administrator regardless of the outcome of the creditor's or claimant's claim or litigation against the estate. Source: L. 73: R&RE, p. 1586, § 1. C.R.S. 1963: § 153-3-621. L. 91: Entire section R&RE, p. 1456, § 3, effective July 1. L. 2018: (6) amended, (SB 18-165), ch. 101, p. 778, § 2, effective August 8. L. 2019: (6) amended, (SB 19-241), ch. 390, p. 3464, § 8, effective August 2. 15-12-622. Public administrator - acting as conservator or trustee. (1) When appointed by a court of appropriate jurisdiction, the public administrator may act as a conservator, temporary conservator, special conservator, trustee, or other fiduciary of any estate that has assets requiring protection. Each county department of human or social services may refer any resident of that county, or any nonresident located in that county, to that county's public administrator for appropriate protective proceedings if the department determines that the person meets the standards required for court protective action. (2) Any case referred to the public administrator pursuant to this section by a county department of human or social services must be presented to the court of appropriate jurisdiction by a petition that states to the court that the public administrator has been requested by the county department of human or social services to act as a conservator or other fiduciary for the person in need of protection, that the public administrator is the nominee of that department, and Colorado Revised Statutes 2019 Page 284 of 600 Uncertified Printout that the public administrator is not acting as an attorney for that department. The public administrator may prepare and file such a petition if requested to do so by the county department of human or social services. The fact that a public administrator has been requested by a county department of human or social services to act as a conservator or other fiduciary shall not be construed by the court as granting any priority for his or her appointment, and the court shall make that determination solely upon the best interests of the person in need of protection. If the public administrator is not appointed as conservator or other fiduciary and the court determines that another individual should act as the conservator or fiduciary, the court may award reasonable fees and costs to the public administrator if the court determines that the efforts of the public administrator were beneficial to the estate or contributed to the protection of the protected person's assets. In cases where the court awards fees and costs to the public administrator, to the extent that such funds are available, such fees must be paid from the protected person's estate. In cases in which the public administrator is not compensated from the protected person's estate, the court may approve the payment of such fees from state funds designated for the payment of court-appointed counsel or fiduciaries. The court may determine the amount of fees to be paid from such state funds as it deems to be just. (3) In any case in which the public administrator has been nominated to act as conservator or other fiduciary at the request of the county department of human or social services and the case develops into a contested court proceeding, the department's own attorney shall assume all aspects of the contested court case, and the public administrator must not be required to be involved in such hearings unless specifically directed to do so by the court. (4) Missing persons. A public administrator has standing to petition a court of appropriate jurisdiction for his or her appointment to act as a conservator, temporary conservator, or special conservator to protect a person's assets and manage the person's estate if: (a) The person is missing, detained, or unable to return to the United States; and (b) No interested person has initiated protective proceedings to accomplish this purpose. Source: L. 73: R&RE, p. 1586, § 1. C.R.S. 1963: § 153-3-622. L. 91: Entire section R&RE, p. 1460, § 4, effective July 1. L. 2007: (4) added, p. 126, § 4, effective July 1. L. 2018: (1) to (3) amended, (SB 18-092), ch. 38, p. 403, § 18, effective August 8. Cross references: For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018. 15-12-623. Public administrator - administration - reports - fees. (1) The following court docket fees shall be charged: (a) Public administrator statements of account in small estates, as "small estates" is defined in section 15-12-1201, having gross assets: Fee Tax T otal (I) Less than $500.00 fee waived (II) $500.00 or more, but less than $2,000.00 $ 9.00 1.00 10.00 (III) $2,000.00 or more $ 108.00 1.00 109.00 Colorado Revised Statutes 2019 Page 285 of 600 Uncertified Printout (b) The docket fee charged in all other decedent, trust, or conservatorship estates filed by a public administrator shall be the same fee as those charged to the general public filing a similar type of action. (c) Nineteen dollars of each fee collected pursuant to subsection (1)(a)(III) of this section shall be transmitted to the state treasurer, who shall deposit it in the office of public guardianship cash fund established pursuant to section 13-94-108 (1). (2) On or before March 1 of each year, each public administrator and deputy public administrator shall file with the appointing court, using a standard report form directed by the chief justice, an annual report concerning the administration of the public administrator cases during the previous calendar year. In addition to the information required on the standard report form, the public administrator shall provide any additional information required by the appointing court. (3) The office of the public administrator shall only charge fees and costs that are reasonable and proper for similar services in the community. The public administrator shall maintain detailed time records for all charged services. The public administrator shall attempt to minimize fees while providing quality fiduciary, administrative, and legal services to all assigned estates. The public administrator may charge the estates under his or her administration for the services of attorneys, paralegals, bookkeepers, certified public accountants, investigators, tax counsel, or any other professional or nonprofessional who provides necessary services which further the cost-effective administration of the estates. A public administrator who is a member of a law firm may use the legal services of that firm to assist the public administrator in his or her duties as the public administrator or as a fiduciary. All fees of the public administrator or of the public administrator's agents and employees are subject to review by the court having jurisdiction over the estate in which the fees were incurred. The payment of public administrators' administrative fees and costs shall have priority over all other claims and exempt property or family allowances. In cases in which the public administrator is appointed to administer an estate and a more suitable person is subsequently located and such person is then appointed to continue the administration of the estate, the public administrator shall be entitled to receive the prompt payment of his fees and costs for the period of his administration of the estate. (4) Cash assets collected by the public administrator in small decedent estates may be combined into a single public administrator's trust account which shall be held in a federally insured bank or savings and loan association located in this state. The total amount of the funds in a single public administrator's trust account shall not exceed the federal deposit insurance limits for such accounts. When an additional account is required, such account shall be opened in a different Colorado bank or savings and loan association which has the required federal deposit insurance protection. Regardless of whether the public administrator is an attorney, all estate funds under the control of a public administrator shall be governed by the rules set forth by the Colorado supreme court in the code of professional responsibility, DR 9-102, dealing with trust accounts, unless otherwise modified by this section. Any public administrator's trust account may be utilized as the temporary depository for any public administrator funds. When letters are issued in an estate, the funds belonging to such an estate shall be promptly transferred to an account or accounts in the individual estate's name. Colorado Revised Statutes 2019 Page 286 of 600 Uncertified Printout Source: L. 91: Entire section added, p. 1461, § 5, effective July 1. L. 95: (1)(a)(III) amended, p. 741, § 6, effective July 1, 1997. L. 2018: (2) amended, (SB 18-165), ch. 101, p. 778, § 3, effective August 8. L. 2019: (1)(a)(III) amended and (1)(c) added, (HB 19-1045), ch. 366, p. 3366, § 6, effective July 1. Editor's note: Section 9 of chapter 366 (HB 19-1045), Session Laws of Colorado 2019, provides that the act changing this section applies to fees assessed on or after July 1, 2019. PART 7 DUTIES AND POWERS OF PERSONAL REPRESENTATIVES Law reviews: For article, "Choosing a Fiduciary", see 15 Colo. Law. 203 (1986); for article, "Ethical Problem Areas for Probate Lawyers", see 19 Colo. Law. 1069 (1990); for article, "Who's on First - The Client in Estate Administration", see 22 Colo. Law. 2393 (1993); for article, "A Personal Representative's Right to Participate in a Will Contest", see 33 Colo. Law. 57 (April 2004). 15-12-701. Time of accrual of duties and powers. The duties and powers of a personal representative commence upon his or her appointment. The powers of a personal representative relate back in time to give acts by the person appointed that are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person nominated to serve as personal representative in a will may carry out written instructions of the decedent or of the persons designated to control disposition of the decedent's last remains under section 15-19-106, relating to his or her body, anatomical gifts, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative. Source: L. 73: R&RE, p. 1587, § 1. C.R.S. 1963: § 153-3-701. L. 2003: Entire section amended, p. 1355, § 3, effective August 6. 15-12-702. Priority among different letters. A person to whom general letters are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters are afterwards issued to another, the first appointed representative may recover any property of the estate in the hands of the representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment. Source: L. 73: R&RE, p. 1587, § 1. C.R.S. 1963: § 153-3-702. 15-12-703. General duties - relation and liability to persons interested in estate duty to search for a designated beneficiary agreement - standing to sue. (1) A personal representative is a fiduciary who shall observe the standards of care applicable to trustees as described by part 8 of article 5 of this title 15. A personal representative has a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective Colorado Revised Statutes 2019 Page 287 of 600 Uncertified Printout will and this code, and as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred upon him or her by this code, the terms of the will, if any, and any order in proceedings to which he or she is party for the best interests of successors to the estate. (2) A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning his appointment or fitness to continue, or a supervised administration proceeding. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse, any minor and dependent children, and any pretermitted child of the decedent. (3) Repealed. (3.5) A personal representative shall not be surcharged for distributions made that do not take into consideration the possible birth of a posthumously conceived child unless prior to such distribution: (a) The personal representative has received notice or has actual knowledge that there is an intention to use an individual's genetic material to create a child or has received written notice that there may be 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. (4) Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this state at his death has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as his decedent had immediately prior to death. (5) A personal representative shall not be surcharged for distributions made that do not take into consideration a designated beneficiary agreement if: (a) The personal representative has reviewed the records of the county clerk and recorder's office 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 for a valid, unrevoked designated beneficiary agreement in which the decedent granted the right of intestate succession; and (b) The personal representative has not received actual notice nor has actual knowledge of the existence of a valid, unrevoked designated beneficiary agreement in which the decedent granted the right of intestate succession. (6) Subject to the good faith standard of section 15-10-602 (6), the provisions of section 15-10-605, and subsections (7) and (8) of this section, personal representatives, persons with priority for appointment as personal representative, and court-appointed fiduciaries may ascertain the testator's probable intent or estate planning purpose on issues involving the decedent's estate and, where not contrary to public policy or law, shall have standing and may prosecute or defend that intent or purpose, at the expense of the estate, in proceedings brought under this code. Colorado Revised Statutes 2019 Page 288 of 600 Uncertified Printout (7) Without limiting the general applicability of subsection (6) of this section: (a) (I) A person serving as personal representative or a person nominated as personal representative in a will or appointed as public or special administrator has standing, but no duty, to offer a will for probate. If such person declines or is unable to offer the will for probate, any person who is a successor of the decedent under the will may offer the will for probate and defend the validity of the will in proceedings under this code. In either case, the person may act notwithstanding the fact that he or she may be a devisee under the will. The will proponent's reasonable fees and costs are payable as an expense of administration. (II) For purposes of this subsection (7), a proponent other than the nominated personal representative should be treated as a nominated personal representative in cases where the nominated personal representative has declined or is unable to offer the will for probate. Such treatment shall not confer upon the proponent a higher priority for appointment than was conferred upon such proponent pursuant to section 15-12-203 before the will was offered for probate. (b) The personal representative has standing to oppose, at estate expense, a person's claim to be an heir; an omitted spouse or child; a spouse, including a common law spouse; or a devisee. (c) The personal representative has standing to oppose, at estate expense, a surviving spouse's attempt to invalidate a marital agreement that limits his or her share in the estate. (d) Where a surviving spouse petitions for an elective share, the court proceeding is an action between the spouse and the interested person or persons whose interests may be affected, and the personal representative is a neutral party to the proceeding. In such a proceeding, the fees and costs reasonably incurred by the personal representative and his or her agents in providing basic information to the parties regarding the augmented estate are payable as an estate expense. The personal representative may prepare a calculation of the augmented estate at estate expense. (8) (a) In any proceeding brought under this code where any personal representative, person with priority for appointment as a personal representative, nominated personal representative, or court-appointed fiduciary purports to participate in the proceeding at estate expense and has a material conflict of interest, any interested person may petition the court pursuant to section 15-12-614 (1)(b) or 15-12-713 for the appointment of an independent special administrator to represent, to the extent the court directs, the estate's interests in the litigation at estate expense. (b) For purposes of this subsection (8), the fact that a personal representative, a person with priority for appointment as a personal representative, a nominated personal representative, or a court-appointed fiduciary is also a successor or a potential successor of the estate is not, in and of itself, a material conflict of interest. Source: L. 73: R&RE, p. 1587, § 1. C.R.S. 1963: § 153-3-703. L. 75: (3) repealed, p. 606, § 62, effective July 1. L. 2010: (3.5) added, (SB 10-199), ch. 374, p. 1751, § 14, effective July 1. L. 2011: (3.5)(a) amended, (SB 11-083), ch. 101, p. 303, § 5, effective August 10. L. 2012: (5) added, (SB 12-131), ch. 114, p. 393, § 1, effective April 13. L. 2013: (6), (7), and (8) added, (SB 13-077), ch. 190, p. 767, § 3, effective August 7. L. 2018: (1) amended, (SB 18-180), ch. 169, p. 1193, § 12, effective January 1, 2019. Colorado Revised Statutes 2019 Page 289 of 600 Uncertified Printout Cross references: For the duty of a personal representative to take possession of decedent's estate, see § 15-12-709. 15-12-704. Personal representative to proceed without court order - exception. A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and, except as otherwise specified or ordered in regard to a supervised personal representative, do so without adjudication, order, or direction of the court, but he may invoke the jurisdiction of the court, in proceedings authorized by this code, to resolve questions concerning the estate or its administration. Source: L. 73: R&RE, p. 1587, § 1. C.R.S. 1963: § 153-3-704. 15-12-705. Duty of personal representative - information to heirs and devisees. (1) Not later than thirty days after appointment, every personal representative, except any special administrator, shall give information of his or her appointment to the heirs and devisees, including, if there has been no formal testacy proceeding and if the personal representative was appointed on the assumption that the decedent died intestate, the devisees in any will mentioned in the application for appointment of a personal representative. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the personal representative. The duty does not extend to require information to persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the estate. The information shall: (a) Include the name, address, and date of appointment of the personal representative; (b) Include the date of death of the decedent; (c) Indicate whether the decedent died intestate or testate and, if the decedent died testate, the dates of the will and any codicils thereto, the date of admission to probate, and whether the probate was formal or informal; (d) Indicate that it is being sent to persons who have or may have some interest in the estate being administered; (e) Indicate whether bond has been filed; (f) Indicate whether administration is supervised and, if administration is unsupervised, that the court will consider ordering supervised administration if requested by an interested person; (g) Indicate that papers relating to the estate, including an inventory of estate assets, as described in section 15-12-706, are either on file with the court or available to be obtained by interested persons from the personal representative; (h) Indicate that interested persons are entitled to receive an accounting; (i) Indicate that the surviving spouse, minor children, and dependent children may be entitled to exempt property and a family allowance if a request for payment is made in the manner and within the time limits prescribed by statutes; (j) Indicate that the surviving spouse may have a right of election to take a portion of the augmented estate if a petition is filed within the time limits prescribed by statute; (k) Indicate that, because a court will not routinely review or adjudicate matters unless it is specifically requested to do so by a beneficiary, creditor, or other interested person, all interested persons, including beneficiaries and creditors, have the responsibility to protect their Colorado Revised Statutes 2019 Page 290 of 600 Uncertified Printout own rights and interests in the estate in the manner provided by the provisions of this code by filing an appropriate pleading with the court by which the estate is being administered and serving it on all interested persons pursuant to section 15-10-401; (l) Indicate that all interested parties have the right to obtain information about the estate by filing a demand for notice pursuant to section 15-12-204; (m) Indicate that any individual who has knowledge that there is or may be an intention to use an individual's genetic material to create a child and that the birth of the child could affect the distribution of the decedent's estate should give written notice of such knowledge to the personal representative of the decedent's estate; and (n) Indicate 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. (2) The personal representative's failure to give the information required by this section is a breach of his or her duty to the persons concerned but does not affect the validity of the personal representative's appointment, powers, or other duties. A personal representative may inform other persons of his or her appointment by delivery or ordinary first-class mail. (3) The personal representative shall file with the court a copy of the information provided and a statement of when, to whom, and at which address or addresses it was provided. Source: L. 73: R&RE, p. 1588, § 1. C.R.S. 1963: § 153-3-705. L. 96: Entire section amended, p. 659, § 11, effective July 1. L. 2008: (1) amended, p. 483, § 5, effective July 1. L. 2010: (1)(g) and (1)(h) amended and (1)(i) added, (SB 10-199), ch. 374, p. 1752, § 15, effective July 1. L. 2011: (1)(i) amended, (SB 11-083), ch. 101, p. 304, § 6, effective August 10. L. 2013: (1) amended and (3) added, (SB 13-077), ch. 190, p. 769, § 4, effective August 7. L. 2015: (1)(i) amended, (SB 15-264), ch. 259, p. 951, § 38, effective August 5. Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101. 15-12-706. Duty of personal representative - inventory and appraisement. (1) Within three months after his appointment, a personal representative who is not a successor to another representative who has previously discharged this duty shall prepare an inventory of property owned by the decedent and subject to disposition by will or intestate succession at the time of his death, listing it with reasonable detail and indicating, as to each listed item, its fair market value as of the date of the decedent's death and the type and amount of any encumbrance that may exist with reference to any item. The inventory shall include the oath or affirmation of the personal representative that it is complete and accurate so far as he is informed. (2) The personal representative shall send a copy of the inventory to interested persons who request it, or he may file the original of the inventory with the court. (3) If it appears that the heirs of an intestate or the devisees of a testator are unknown, or if known and there is no person qualified to receive the distributive share of such heirs or devisees, the personal representative shall also, within said three months, deliver or mail to the attorney general a copy of the inventory. Colorado Revised Statutes 2019 Page 291 of 600 Uncertified Printout Source: L. 73: R&RE, p. 1588, § 1. C.R.S. 1963: § 153-3-706. L. 75: (1) amended, p. 596, § 28, effective July 1. L. 77: (1) amended, p. 834, § 18, effective July 1. 15-12-707. Employment of appraisers. The personal representative may employ qualified and disinterested appraisers to assist him in ascertaining the fair market value as of the date of the decedent's death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items he appraised. Source: L. 73: R&RE, p. 1588, § 1. C.R.S. 1963: § 153-3-707. 15-12-708. Duty of personal representative - supplementary inventory. If any property not included in the original inventory comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, he shall make a supplementary inventory or appraisement showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the court if the original inventory was filed, or furnish copies thereof or information thereof to interested persons who request the inventory. Source: L. 73: R&RE, p. 1588, § 1. C.R.S. 1963: § 153-3-708. 15-12-709. Duty of personal representative - possession of estate. Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property; except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for the purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for the purposes of administration. The personal representative shall pay taxes on and take all steps reasonably necessary for the management, protection, and preservation of the estate in such representative's possession. The personal representative may maintain an action to recover possession of the property or to determine the title thereto. If the personal representative incurs expenses necessary for the protection or disposition of property not subject to such representative's administration, such as those incurred to fix the amount of death taxes thereon, or to compel the contribution contemplated in section 15-11-204 or 15-12-916 (4), the court may fix such liability for the same as it determines to be equitable against any person entitled to or wrongfully withholding the property. Source: L. 73: R&RE, p. 1589, § 1. C.R.S. 1963: § 153-3-709. L. 81: Entire section amended, p. 914, § 7, effective July 1. L. 94: Entire section amended, p. 1037, § 11, effective Colorado Revised Statutes 2019 Page 292 of 600 Uncertified Printout July 1, 1995. L. 2009: Entire section amended, (HB 09-1241), ch. 169, p. 761, § 17, effective April 22. 15-12-710. Power to avoid transfers. The property liable for the payment of unsecured debts of a decedent includes all property transferred by him by any means which is in law void or voidable as against his creditors, and, subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative. Source: L. 73: R&RE, p. 1589, § 1. C.R.S. 1963: § 153-3-710. 15-12-711. Powers of personal representatives - in general. Until termination of his appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court. Source: L. 73: R&RE, p. 1589, § 1. C.R.S. 1963: § 153-3-711. 15-12-712. Improper exercise of power - breach of fiduciary duty. If the exercise of power concerning the estate is improper, the personal representative is subject to the provisions of section 15-10-504 and is liable to interested persons for damage or loss resulting from breach of his or her fiduciary duty to the same extent as a trustee of an express trust. The rights of purchasers and others dealing with a personal representative shall be determined as provided in sections 15-12-713 and 15-12-714. Source: L. 73: R&RE, p. 1589, § 1. C.R.S. 1963: § 153-3-712. L. 2008: Entire section amended, p. 483, § 6, effective July 1. 15-12-713. Sale, encumbrance, or transaction involving conflict of interest voidable - exceptions. (1) Any sale or encumbrance to the personal representative, his spouse, agent, or attorney, or any corporation or trust in which he has a beneficial interest, or any transaction which is affected by a conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented, unless: (a) The will or a contract entered into by the decedent expressly authorized the transaction; or (b) The transaction is approved by the court after notice to interested persons. (c) Repealed. (2) Any transaction previously declared by subsection (1) of this section to be void shall be deemed voidable unless a petition has been filed with the court to set aside any such transaction and a lis pendens has been recorded in the county where any affected real property is located, within sixty days after July 16, 1975. Source: L. 73: R&RE, p. 1589, § 1. C.R.S. 1963: § 153-3-713. L. 75: IP(1) amended, (1)(c) repealed, and (2) added, pp. 596, 606, §§ 29, 62, effective July 1. Colorado Revised Statutes 2019 Page 293 of 600 Uncertified Printout 15-12-714. Persons dealing with personal representative - protection. (1) A person who in good faith either assists a personal representative or deals with him for value is protected as if the personal representative properly exercised his power. The fact that a person knowingly deals with a personal representative does not alone require the person to inquire into the existence of a power or the propriety of its exercise. Except for restrictions on powers of supervised personal representatives which are endorsed on letters as provided in section 15-12504, no provision in any will or order of court purporting to limit the power of a personal representative is effective, except as to persons with actual knowledge thereof. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is found to be alive. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries. (2) For purposes of this section, any recorded instrument evidencing a transaction with a personal representative on which a state documentary fee is noted pursuant to section 39-13-103, C.R.S., shall be prima facie evidence that such transaction was made for value. Source: L. 73: R&RE, p. 1590, § 1. C.R.S. 1963: § 153-3-714. L. 75: Entire section amended, p. 596, § 30, effective July 1. 15-12-715. Transactions authorized for personal representatives - exceptions. (1) Except as restricted or otherwise provided by the will or by an order in a formal proceeding and subject to the priorities stated in section 15-12-902, a personal representative, acting reasonably for the benefit of the interested persons, may properly: (a) Exercise any of the powers enumerated in the "Colorado Fiduciaries' Powers Act" at the time of such exercise; and (b) Satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances. Source: L. 73: R&RE, p. 1590, § 1. C.R.S. 1963: § 153-3-715. Cross references: For the "Colorado Fiduciaries' Powers Act", see part 8 of article 1 of this title. 15-12-716. Powers and duties of successor personal representative. A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but he shall not exercise any power expressly made personal to the executor named in the will. Source: L. 73: R&RE, p. 1590, § 1. C.R.S. 1963: § 153-3-716. Colorado Revised Statutes 2019 Page 294 of 600 Uncertified Printout 15-12-717. Corepresentatives - when joint action required. If two or more persons are appointed corepresentatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any corepresentative receives and receipts for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a corepresentative has been delegated to act for the others. Persons dealing with a corepresentative, if actually unaware that another has been appointed to serve with him or if advised by the personal representative with whom they deal that he has authority to act alone for any of the reasons mentioned herein, are as fully protected as if the person with whom they dealt had been the sole personal representative. Source: L. 73: R&RE, p. 1590, § 1. C.R.S. 1963: § 153-3-717. 15-12-718. Powers of surviving personal representative. Unless the terms of the will otherwise provide, every power exercisable by personal corepresentatives may be exercised by the one or more remaining after the appointment of one or more is terminated, and if one of two or more nominated as personal corepresentatives is not appointed, those appointed may exercise all the powers incident to the office. Source: L. 73: R&RE, p. 1591, § 1. C.R.S. 1963: § 153-3-718. 15-12-719. Compensation of personal representative. (Repealed) Source: L. 73: R&RE, p. 1591, § 1. C.R.S. 1963: § 153-3-719. L. 2001: Entire section amended, p. 888, § 5, effective June 1. L. 2011: Entire section repealed, (SB 11-083), ch. 101, p. 317, § 27, effective August 10. 15-12-720. Expenses in estate litigation. (Repealed) Source: L. 73: R&RE, p. 1591, § 1. C.R.S. 1963: § 153-3-720. L. 2001: Entire section amended, p. 888, § 6, effective June 1. L. 2011: Entire section repealed, (SB 11-083), ch. 101, p. 317, § 27, effective August 10. 15-12-721. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate. (Repealed) Source: L. 73: R&RE, p. 1591, § 1. C.R.S. 1963: § 153-3-721. L. 75: (2)(f) repealed, p. 606, § 62, effective July 1. L. 2001: (3) added, p. 889, § 7, effective June 1. L. 2011: Entire section repealed, (SB 11-083), ch. 101, p. 317, § 27, effective August 10. 15-12-722. Failure to comply with court orders - penalty. (Repealed) Source: L. 75: Entire section added, p. 597, § 31, effective July 1. L. 2008: Entire section repealed, p. 484, § 7, effective July 1. Colorado Revised Statutes 2019 Page 295 of 600 Uncertified Printout 15-12-723. Assets concealed or embezzled. If any personal representative, heir, legatee, creditor, guardian, or conservator or other person interested in the estate of any deceased person or protected person complains to the court, in writing, that any person is suspected to have concealed, embezzled, carried away, or disposed of any money, goods, or chattels of the deceased or protected person, or that such person has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings which contain evidence of or tend to disclose the right, title, interest, or claim of the decedent or protected person to any real or personal estate, or any claim or demand, or any last will and testament of the deceased, the said district or probate court may cite such suspected person to appear before it and may examine him on oath upon the matter of such complaint. If the person cited refuses to appear and submit to such examination or to answer such interrogatories as may be put to him touching the matter of such complaint, the court may, by warrant for that purpose, commit him to the county jail until he complies with the order of the court. All such interrogatories and answers may be in writing and signed by the party examined and filed in the district or probate court. Source: L. 75: Entire section added, p. 597, § 31, effective July 1. PART 8 CREDITORS' CLAIMS Law reviews: For article, "Creditors' Claims", see 13 Colo. Law. 1399 (1984); for article, "The Colorado Non-Claim Statute", see 21 Colo. Law. 45 (1992); for article, "Claims Against Decedents' Estates", see 27 Colo. Law. 45 (May 1998); for article, "Probate Jurisdiction for Creditors' Claims", see 29 Colo. Law. 57 (May 2000); for article, "Pre-Death Creditors' Claims Under the Colorado Probate Code: Part I", see 30 Colo. Law. 81 (Aug. 2001); for article, "Pre-Death Creditors' Claims Under the Colorado Probate Code: Part II", see 30 Colo. Law. 77 (Sept. 2001); for article, "New Developments in Creditor Claims Provisions of the Colorado Probate Code", see 35 Colo. Law. 67 (Dec. 2006); for article, "JDF 999 Collection of Personal Property by Affidavit Pursuant to CRS §§ 15-12-1201 and -1202", see 42 Colo. Law. 49 (June 2013). 15-12-801. Notice to creditors. (1) Unless one year or more has elapsed since the death of the decedent, a personal representative shall cause a notice to creditors to be published in some daily or weekly newspaper published in the county in which the estate is being administered, or if there is no such newspaper, then in some newspaper of general circulation in an adjoining county. Such notice shall be published not less than three times, at least once during each of three successive calendar weeks. The notice shall be substantially as follows: NOTICE TO CREDITORS Estate of ........................................(Deceased) No. ............................... Colorado Revised Statutes 2019 Page 296 of 600 Uncertified Printout All persons having claims against the above-named estate are required to present them to the undersigned or to the District Court of ..........County, Colorado (or Probate Court of the City and County of Denver, Colorado), on or before (a date not earlier than four months from date of first publication or the date one year from date of death, whichever occurs first), .................................................................................. 20 ....., or said claims may be forever barred. ............................................. Personal Representative (2) A personal representative may give written notice by mail or other delivery to any creditor. Written notice shall be the notice described in subsection (1) of this section or a similar notice. Such written notice shall notify the creditor to present his claim within the later of the following time periods or be forever barred: (a) Within the time set in the notice to creditors by publication in compliance with subsection (1) of this section; or (b) Within sixty days from the mailing or other delivery of such notice, but not later than the date one year from date of death. (3) A personal representative shall not be liable to any creditor or to any successor of the decedent for giving or failing to give notice under this section. Source: L. 73: R&RE, p. 1592, § 1. C.R.S. 1963: § 153-3-801. L. 75: Entire section R&RE, p. 597, § 32, effective July 1. L. 79: Entire section amended, p. 649, § 9, effective July 1. L. 90: Entire section amended, p. 904, § 1, effective July 1. 15-12-802. Statutes of limitations. (1) Unless an estate is insolvent, or would thereby be rendered insolvent, the personal representative, with the consent of all successors whose interests would be affected, may waive any defense of limitations available to the estate. If the defense is not waived, no claim which was barred by any statute of limitations at the time of the decedent's death shall be allowed or paid. (2) The running of any statute of limitations measured from some event other than death or the giving of notice to creditors for claims against a decedent is suspended during the four months following the decedent's death but resumes thereafter as to claims not barred pursuant to the provisions of this part 8. (3) For purposes of any statute of limitations other than those time periods specified in sections 15-12-801, 15-12-803, 15-12-804, and 15-12-806, the proper presentation of a claim under section 15-12-804 is equivalent to commencement of a proceeding on the claim. Source: L. 73: R&RE, p. 1592, § 1. C.R.S. 1963: § 153-3-802. L. 75: Entire section amended, p. 598, § 33, effective July 1. L. 90: Entire section amended, p. 905, § 2, effective July 1. 15-12-803. Limitations on presentation of claims. (1) (a) All claims against a decedent's estate that arose before the death of the decedent, including claims of the state of Colorado and any subdivision thereof, whether due or to become due, absolute or contingent, Colorado Revised Statutes 2019 Page 297 of 600 Uncertified Printout liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statutes of limitations, are barred against the estate, the personal representative, any transferee or other person incurring liability under section 15-15-103, and the heirs and devisees of the decedent, unless presented as follows: (I) As to creditors barred by publication, within the time set in the published notice to creditors; (II) As to creditors barred by written notice, within the time set in the written notice; (III) As to all creditors, within one year after the decedent's death. (b) In addition to the limitations on presentation of claims in paragraph (a) of this subsection (1), claims barred by the nonclaim statute at the decedent's domicile are also barred in this state. (2) All claims against a decedent's estate that arise at or after the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, any transferee or other person incurring liability under section 15-15-103, and the heirs and devisees of the decedent, unless presented as follows: (a) A claim based on a contract with the personal representative, within four months after performance by the personal representative is due; (b) Any other claim, within four months after it arises. (3) Nothing in this section affects or prevents: (a) Any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate; (b) To the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance; or (c) Collection of compensation for services rendered and reimbursement for expenses advanced by the personal representative or by the attorney or accountant for the personal representative of the estate. (4) This section is a nonclaim statute that cannot be waived or tolled, and it shall not be considered a statute of limitations. (5) Unless section 15-10-106 is determined to apply, and subject to the provisions of subsection (3) of this section, claims that are not presented in accordance with subsections (1) and (2) of this section are barred even if addressing the merits of the claim would not delay the settlement and distribution of the estate. Source: L. 73: R&RE, p. 1592, § 1. C.R.S. 1963: § 153-3-803. L. 75: (3)(c) added, p. 598, § 34, effective July 1. L. 79: (1)(a) amended, p. 650, § 10, effective July 1. L. 90: (1) R&RE, p. 905, § 3, effective July 1. L. 2006: IP(1)(a) and IP (2) amended and (4) and (5) added, p. 373, § 2, effective July 1. 15-12-804. Manner of presentation of claims. (1) Before a claim may be presented, the decedent's estate must first have been commenced in a court of appropriate jurisdiction by the filing of an application or petition pursuant to part 3 or 4 of this article. A claimant may thereafter present a claim only by: Colorado Revised Statutes 2019 Page 298 of 600 Uncertified Printout (a) Filing a written statement of the claim with the clerk of the court, in the form approved by the supreme court, whether or not a personal representative has been appointed; (b) Delivering or mailing a written statement of the claim to the court-appointed personal representative; or (c) In the case of a claimant who has a claim described in section 15-12-803 (1), presenting a claim by commencing a proceeding against the personal representative in the court where the personal representative was appointed to obtain payment of the claim. A claimant having a claim described in section 15-12-803 (2) may present a claim by commencing a proceeding against the personal representative in any court where the personal representative may be subjected to jurisdiction under the rules of civil procedure or statutes of this state to obtain payment of his or her claim against the estate. In order to constitute a timely presentation of a claim, the commencement of any proceeding under this paragraph (c) must occur within the time limited for presenting the claim. Time limits on proceedings to enforce timely presented claims are determined by section 15-12-806 (1) and not by this paragraph (c). (2) Unless presentation is made pursuant to paragraph (a) of subsection (1) of this section, a claim against a decedent's estate is not validly presented by delivering or mailing a claim to any person unless that person has been appointed by the court or registrar of the court as the personal representative of the decedent's estate prior to the time the presentation is attempted. (3) A personal representative's knowledge that a creditor could bring a claim against an estate shall not be treated as a valid substitute for the proper presentation of a written claim authorized by subsection (1) of this section. (4) Each written statement of a claim shall include: (a) A request or demand for payment from the decedent or the estate; and (b) Sufficient information to allow the personal representative to investigate and respond to the claim, including the basis of the claim, the name and address of the claimant, and the amount claimed. (5) Except in the situation where a special administrator has been formally appointed with specific powers to deal with the specific claim being presented or has been formally appointed to deal with claims generally under this part 8, a special administrator appointed in informal proceedings, or a special administrator who lacks the powers and authority of a general personal representative, is not a personal representative to whom presentation of a claim may properly be made. (6) A claim shall be deemed presented on the date that the court-appointed personal representative receives the written statement of claim or the date the claim is filed with the court, whichever is earlier. If a claim is not yet due, the claim shall state the date when it will become due. If the claim is contingent or unliquidated, the claim shall state the nature of the uncertainty. If the claim is secured, the claim shall describe the security. Failure to describe correctly the security, the nature of any uncertainty, or the due date of a claim not yet due does not invalidate the presentation made. (7) The personal representative shall inform any interested person, upon request, as to the existence, amounts, and nature of all claims against the estate that are known to him or her, but the personal representative shall not be required to express any opinion as to the probable outcome of any claim. (8) If a claim is presented under subsection (1) of this section, a proceeding thereon may not be commenced more than sixty-three days after the personal representative has mailed a Colorado Revised Statutes 2019 Page 299 of 600 Uncertified Printout notice of disallowance; except that, in the case of a claim that is not presently due or that is contingent or unliquidated, the personal representative may consent to an extension of the sixtythree-day period, or, to avoid injustice, the court, on petition, may order an extension of the sixty-three-day period, but in no event shall the extension run beyond the applicable statute of limitations. Source: L. 73: R&RE, p. 1593, § 1. C.R.S. 1963: § 153-3-804. L. 75: (2) amended, p. 598, § 35, effective July 1. L. 96: Entire section amended, p. 660, § 12, effective July 1. L. 2006: Entire section amended, p. 374, § 3, effective July 1. L. 2012: (8) amended, (SB 12-175), ch. 208, p. 838, § 44, effective July 1. 15-12-805. Classification of claims. (1) The personal representative shall pay allowed claims against the estate of a decedent in the following order: (a) Property held by or in the possession of the deceased person as fiduciary or trustee of a trust, which shall include a resulting trust, as long as the reasonable expenses of administering such property and of investigating and determining such claim, as provided by section 15-10602, but subject to section 15-10-605, shall be paid from such property as determined by the court; (b) Other costs and expenses of administration; (c) Reasonable funeral and burial, interment, or cremation expenses; (d) Debts and taxes with preference under federal law; (e) Reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him or her; (f) Debts and taxes with preference under other laws of this state; (f.5) The claim of the department of health care policy and financing for the net amount of medical assistance, as defined in section 25.5-4-302 (5), C.R.S., paid to or for the decedent; (f.7) The claim of a county department of human or social services or the state department of human services for the excess public assistance paid for which the recipient was ineligible; (g) Any child support obligations of the decedent that were due and unpaid at death in accordance with a valid court order or agreement of record in which the decedent was a party, and any future child support obligations of the decedent as determined by the court; (h) All other claims. (2) No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due. Source: L. 73: R&RE, p. 1593, § 1. C.R.S. 1963: § 153-3-805. L. 79: (1)(a) amended, p. 650, § 11, effective July 1. L. 91, 2nd Ex. Sess.: (1)(f.5) added, p. 91, § 7, effective October 16. L. 94: (1)(f.5) amended, p. 2647, § 113, effective July 1. L. 96: (1)(f.5) amended, p. 824, § 8, effective May 23. L. 2002: (1) amended, p. 653, § 9, effective July 1. L. 2006: (1)(f.5) amended, p. 2002, § 49, effective July 1; (1)(f.7) added, p. 948, § 5, effective August 7. L. 2011: (1)(a) amended, (SB 11-083), ch. 101, p. 304, § 7, effective August 10. L. 2013: (1)(g) amended and (1)(h) added, (SB 13-077), ch. 190, p. 770, § 5, effective August 7. L. 2014: IP(1) and (1)(g) amended, (HB 14-1322), ch. 296, p. 1234, § 5, effective August 6. L. 2018: (1)(f.7) amended, (SB 18-092), ch. 38, p. 404, § 19, effective August 8. Colorado Revised Statutes 2019 Page 300 of 600 Uncertified Printout Cross references: For the legislative declaration contained in the 1994 act amending this section, see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative intent contained in the 2006 act enacting subsection (1)(f.7), see section 8 of chapter 208, Session Laws of Colorado 2006. For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018. 15-12-806. Allowance of claims. (1) The personal representative may mail a notice to any claimant stating that the claim has been disallowed. If the personal representative fails to mail notice to a claimant of action on his or her claim within sixty-three days after the time for original presentation of the claim has expired, the claim shall be deemed to be allowed. After any claim has been deemed to be allowed or disallowed, the personal representative may change the status of the allowance or disallowance of the claim by notice to the claimant; except that the personal representative may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has run and the claim has been barred. Every claim that is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than sixty-three days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. (2) Upon the petition of the personal representative or of a claimant in a proceeding for the purpose, the court may allow in whole or in part any claim or claims presented to the personal representative or filed with the clerk of the court in due time and not barred by subsection (1) of this section. Notice in this proceeding shall be given to the claimant, the personal representative, and those other persons interested in the estate as the court may direct by order entered at the time the proceeding is commenced. (3) A judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim. (4) Unless otherwise provided in any judgment in another court entered against the personal representative, allowed claims bear interest at the legal rate for the period commencing sixty-three days after the time for original presentation of the claim has expired unless based on a contract making a provision for interest, in which case they bear interest in accordance with that provision. Source: L. 73: R&RE, p. 1594, § 1. C.R.S. 1963: § 153-3-806. L. 79: (1) amended, p. 650, § 12, effective July 1. L. 2006: (1) amended, p. 376, § 4, effective July 1. L. 2012: (1) and (4) amended, (SB 12-175), ch. 208, p. 838, § 45, effective July 1. 15-12-807. Payment of claims. (1) One year after the decedent's death, the personal representative shall proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for family and exempt property allowances, for claims already presented which have not yet been allowed or whose allowance has been appealed, and for unbarred claims which may yet be presented, including costs and expenses of administration. By petition to the court in a proceeding for the purpose, or by appropriate motion if the administration is supervised, a claimant whose claim has been allowed but not paid as provided Colorado Revised Statutes 2019 Page 301 of 600 Uncertified Printout in this subsection (1) may secure an order directing the personal representative to pay the claim to the extent that funds of the estate are available for the payment. (2) The personal representative at any time may pay any just claim which has not been barred, with or without formal presentation, but he is personally liable to any other claimant whose claim is allowed and who is injured by such payment if: (a) The payment was made before the expiration of the time limit stated in subsection (1) of this section and the personal representative failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or (b) The payment was made, due to the negligence or willful fault of the personal representative, in such manner as to deprive the injured claimant of his priority. Source: L. 73: R&RE, p. 1594, § 1. C.R.S. 1963: § 153-3-807. L. 90: (1) amended, p. 906, § 4, effective July 1. 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. Colorado Revised Statutes 2019 Page 302 of 600 Uncertified Printout 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. 15-12-809. Secured claims. (1) Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders his security; otherwise payment is upon the basis of one of the following: (a) If the creditor exhausts his security before receiving payment, (unless precluded by other law) upon the amount of the claim allowed less the fair value of the security; or (b) If the creditor does not have the right to exhaust his security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise, or litigation. (2) A claim for a decedent's proportionate share of liability for a secured debt, made by a third party who is jointly liable with the decedent to the secured creditor, based on the third party's right to contribution from the decedent, shall be reduced by the fair market value, as of the date of death, of the decedent's interest in the property securing the debt, if the property securing the debt is owned by the decedent and not subject to disposition by will or intestate succession at the time of death, and if the decedent's interest passed to the third party on decedent's death. Source: L. 73: R&RE, p. 1595, § 1. C.R.S. 1963: § 153-3-809. L. 91: Entire section amended, p. 1449, § 11, effective July 1. 15-12-810. Claims not due and contingent or unliquidated claims. (1) If a claim which will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class. (2) In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows: (a) If the claimant consents, he may be paid the present or agreed value of the claim, taking any uncertainty into account; (b) Arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, or otherwise. Source: L. 73: R&RE, p. 1595, § 1. C.R.S. 1963: § 153-3-810. Colorado Revised Statutes 2019 Page 303 of 600 Uncertified Printout 15-12-811. Counterclaims. In allowing a claim the personal representative may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate a court shall reduce the amount allowed by the amount of any counterclaims and, if the counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim. Source: L. 73: R&RE, p. 1596, § 1. C.R.S. 1963: § 153-3-811. 15-12-812. Execution and levies prohibited. No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges, or liens upon real or personal property in an appropriate proceeding. Source: L. 73: R&RE, p. 1596, § 1. C.R.S. 1963: § 153-3-812. 15-12-813. Compromise of claims. When a claim against the estate has been presented in any manner, the personal representative may, if it appears to be in the best interest of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated. Source: L. 73: R&RE, p. 1596, § 1. C.R.S. 1963: § 153-3-813. 15-12-814. Encumbered assets. If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the personal representative may pay the encumbrance or any part thereof, renew or extend any obligation secured by the encumbrance, or convey or transfer the assets to the creditor in satisfaction of his lien, in whole or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be in the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration. Source: L. 73: R&RE, p. 1596, § 1. C.R.S. 1963: § 153-3-814. L. 75: Entire section amended, p. 599, § 36, effective July 1. 15-12-815. Administration in more than one state - duty of personal representative. (1) All assets of estates being administered in this state are subject to all claims, allowances, and charges existing or established against the personal representative wherever appointed. (2) If the estate either in this state or as a whole is insufficient to cover all family exemptions and allowances determined by the law of the decedent's domicile, prior charges, and claims, after satisfaction of the exemptions, allowances, and charges, each claimant whose claim has been allowed either in this state or elsewhere in administrations of which the personal representative is aware is entitled to receive payment of an equal proportion of his claim. If a preference or security in regard to a claim is allowed in another jurisdiction but not in this state, Colorado Revised Statutes 2019 Page 304 of 600 Uncertified Printout the creditor so benefited is to receive dividends from local assets only upon the balance of his claim after deducting the amount of the benefit. (3) In case the exempt property and family allowances, prior charges, and claims of the entire estate exceed the total value of the portions of the estate being administered separately and this state is not the state of the decedent's last domicile, the claims allowed in this state shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary personal representative. If local assets are not sufficient to pay all claims allowed in this state the amount to which they are entitled, local assets shall be marshalled so that each claim allowed in this state is paid its proportion as far as possible, after taking into account all dividends on claims allowed in this state from assets in other jurisdictions. Source: L. 73: R&RE, p. 1596, § 1. C.R.S. 1963: § 153-3-815. 15-12-816. Final distribution to domiciliary representative. (1) The estate of a nonresident decedent being administered by a personal representative appointed in this state shall, if there is a personal representative of the decedent's domicile willing to receive it, be distributed to the domiciliary personal representative for the benefit of the successors of the decedent unless: (a) By virtue of the decedent's will, if any, and applicable choice of law rules, the successors are identified pursuant to the local law of this state without reference to the local law of the decedent's domicile; (b) The personal representative of this state, after reasonable inquiry, is unaware of the existence or identity of a domiciliary personal representative; or (c) The court orders otherwise in a proceeding for a closing order under section 15-121001 or incident to the closing of a supervised administration. (2) In other cases distribution of the estate of a decedent shall be made in accordance with the applicable provisions of this article. Source: L. 73: R&RE, p. 1597, § 1. C.R.S. 1963: § 153-3-816. PART 9 SPECIAL PROVISIONS RELATING TO DISTRIBUTION 15-12-901. Successors' rights if no administration. (1) (a) As used in this subsection (1), "will probated in this state" means a will that is declared to be valid by an order of informal probate by the registrar, or an adjudication of probate by the court. (b) Except as otherwise provided in paragraph (c) of this subsection (1) and in part 13 of this article: (I) In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a will probated in this state or the laws of intestate succession. (II) Devisees may establish title by the will probated in this state to devised property. (c) A duly executed and unrevoked will that is not a will probated in this state may be admitted as evidence of a devise if: Colorado Revised Statutes 2019 Page 305 of 600 Uncertified Printout (I) A court proceeding concerning the succession or administration of the estate has not occurred; and (II) Either the devisee or his or her successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent's title during the time period for testacy proceedings. (2) Persons entitled to property by exemption or intestacy may establish title thereto by proof of the decedent's ownership, his or her death, and their relationship to the decedent. (3) Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption. Source: L. 73: R&RE, p. 1597, § 1. C.R.S. 1963: § 153-3-901. L. 2011: Entire section amended, (SB 11-083), ch. 101, p. 304, § 9, effective August 10. 15-12-902. Distribution - order in which assets appropriated - abatement. (1) (a) Except as provided in subsection (2) of this section and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (I) Property not disposed of by the will; (II) Residuary devises; (III) General devises; (IV) Specific devises. (b) For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will. (2) If the will expresses an order of abatement, or the express purpose of the devise would be defeated by the order of abatement stated in subsection (1) of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator. (3) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets. Source: L. 73: R&RE, p. 1597, § 1. C.R.S. 1963: § 153-3-902. 15-12-903. Right of retainer. Unless a contrary intent is indicated by the will, the amount of a noncontingent indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor's interest; but the successor has the benefit of any defense which would be available to him in a direct proceeding for recovery of the debt. Source: L. 73: R&RE, p. 1598, § 1. C.R.S. 1963: § 153-3-903. Colorado Revised Statutes 2019 Page 306 of 600 Uncertified Printout Cross references: For debts to a decedent, see § 15-11-110. 15-12-904. Interest on general pecuniary devise. General pecuniary devises bear interest at the legal rate beginning one year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by the will. Source: L. 73: R&RE, p. 1598, § 1. C.R.S. 1963: § 153-3-904. 15-12-905. Penalty clause for contest. A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings. Source: L. 73: R&RE, p. 1598, § 1. C.R.S. 1963: § 153-3-905. 15-12-906. Distribution in kind - valuation - method. (1) A specific devisee is entitled to distribution of the thing devised to him. (2) (a) Any exempt property or family allowance or devise payable in money may be satisfied by value in kind, if: (I) The person entitled to the payment has requested distribution in kind; (II) The property distributed in kind is valued at fair market value as of the date of its distribution; and (III) No residuary devisee has requested that the asset in question remain a part of the residue of the estate. (b) For the purpose of valuation under paragraph (a) of this subsection (2), securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day prior to distribution, or if there was no sale on that day, at the median between amounts bid and offered at the close of that day. Assets consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution. For assets which do not have readily ascertainable values, a valuation as of a date not more than thirty days prior to the date of distribution, if otherwise reasonable, controls. For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised. (c) The residuary estate may be distributed in cash or in kind, without requiring a pro rata distribution of specific assets, if there is no objection to the proposed distribution. In other cases, residuary property may be converted into cash for distribution, subject to all applicable fiduciary duties, or may be distributed in cash or in kind, without requiring a pro rata distribution of specific assets, pursuant to a court order. (3) After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset he is to receive, if not waived earlier in writing, terminates if he fails to object in writing received by the personal representative within thirty days after mailing or delivery of the proposal. Colorado Revised Statutes 2019 Page 307 of 600 Uncertified Printout (4) If, in any instrument which provides for a devise or transfer intended to qualify for a federal estate tax marital deduction, the personal representative or trustee is required, or expressly authorized, by the terms of the instrument, to satisfy such devise or transfer by a distribution of property in kind at values as finally determined for federal estate tax purposes or at values which are the same as the federal income tax bases of such property to the estate or trust, then, unless the instrument expressly requires that such devise or transfer be satisfied with property having an aggregate fair market value at the date, or dates, of distribution amounting to no less than the amount of such devise or transfer as finally determined for federal estate tax purposes, the distributee of such devise or transfer shall be entitled to a distribution of property which will have an aggregate fair market value fairly representative of the distributee's proportionate share of the appreciation or depreciation in the value to the date, or dates, of distribution of all property then available for distribution, and the personal representative or trustee shall satisfy such devise or transfer accordingly. Source: L. 73: R&RE, p. 1598, § 1. C.R.S. 1963: § 153-3-906. L. 81: (2)(c) amended, p. 914, § 8, effective July 1. 15-12-907. Distribution in kind - evidence. If distribution in kind is made, the personal representative shall execute an instrument or deed of distribution assigning, transferring, or releasing the assets to the distributee as evidence of the distributee's title to the property. Source: L. 73: R&RE, p. 1599, § 1. C.R.S. 1963: § 153-3-907. 15-12-908. Distribution - right or title of distributee. Proof that a distributee has received an instrument or deed of distribution of assets in kind, or payment in distribution, from a personal representative is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate; except that the personal representative may recover the assets or their value if the distribution was improper. Source: L. 73: R&RE, p. 1599, § 1. C.R.S. 1963: § 153-3-908. 15-12-909. Improper distribution - liability of distributee. Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable for return of the property improperly received and its income since distribution if he has the property. If he does not have the property, then he is liable for return of the value as of the date of disposition of the property improperly received and its income and gain received by him. Source: L. 73: R&RE, p. 1599, § 1. C.R.S. 1963: § 153-3-909. Cross references: For liability to persons interested in an estate, see § 15-12-703. 15-12-910. Purchasers from distributees protected. If property distributed in kind or a security interest therein is acquired for value by a purchaser from or lender to a distributee who has received an instrument or deed of distribution from the personal representative, or is so Colorado Revised Statutes 2019 Page 308 of 600 Uncertified Printout acquired by a purchaser from or lender to a transferee from such distributee, the purchaser or lender takes title free of rights of any interested person in the estate and incurs no personal liability to the estate, or to any interested person, whether or not the distribution was proper or supported by court order and whether or not the authority of the personal representative was terminated prior to execution of the instrument or deed. This section protects a purchaser from or lender to a distributee who, as personal representative, has executed a deed of distribution to himself, as well as a purchaser from or lender to any other distributee or his transferee. To be protected under this provision, a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind, even if the personal representative and the distributee are the same person, or whether the authority of the personal representative had terminated prior to the distribution. For purposes of this section, any recorded instrument evidencing a transfer to a purchaser from or lender to a distributee on which a state documentary fee is noted pursuant to section 39-13-103, C.R.S., shall be prima facie evidence that such transfer was made for value. Source: L. 73: R&RE, p. 1599, § 1. C.R.S. 1963: § 153-3-910. L. 75: Entire section R&RE, p. 599, § 37, effective July 1. 15-12-911. Partition for purpose of distribution. When two or more heirs or devisees are entitled to distribution of undivided interests in any real or personal property of the estate, the personal representative or one or more of the heirs or devisees may petition the court, prior to the formal or informal closing of the estate, to make partition. After notice to the interested heirs or devisees, the court shall partition the property in the same manner as provided by the law for civil actions of partition. The court may direct the personal representative to sell any property which cannot be partitioned without prejudice to the owners and which cannot conveniently be allotted to any one party. Source: L. 73: R&RE, p. 1600, § 1. C.R.S. 1963: § 153-3-911. 15-12-912. Private agreements among successors to decedent binding on personal representative. Subject to the rights of creditors, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent or under the laws of intestacy in any way that they provide in a written agreement, whether or not supported by a consideration, executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement subject to his or her obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his or her office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents' estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing in this section relieves trustees of any duties owed to beneficiaries of trusts. Source: L. 75: Entire section added, p. 599, § 38, effective July 1. L. 99: Entire section amended, p. 467, § 5, effective July 1. Colorado Revised Statutes 2019 Page 309 of 600 Uncertified Printout 15-12-913. Distributions to trustee. (1) Before distributing to a trustee, the personal representative may require that the trust be registered if the state in which it is to be administered provides for registration and that the trustee inform the beneficiaries as provided in section 15-5206. (2) If the trust instrument does not excuse the trustee from giving bond, the personal representative may petition the appropriate court to require that the trustee post bond if he apprehends that distribution might jeopardize the interests of persons who are not able to protect themselves, and he may withhold distribution until the court has acted. (3) No inference of negligence on the part of the personal representative shall be drawn from his failure to exercise the authority conferred by subsections (1) and (2) of this section. Source: L. 73: R&RE, p. 1600, § 1. C.R.S. 1963: § 153-3-913. L. 2018: (1) amended, (SB 18-180), ch. 169, p. 1194, § 13, effective January 1, 2019. 15-12-914. Disposition of unclaimed assets. (1) If any heirs or devisees of any intestate or testator are unknown, or if known and there is no person qualified to receive devises or distributive shares of such heirs or devisees at the time of making final settlement of the estate, or if such heirs or devisees refuse to receive and receipt for such devises or distributive shares, or in the event there is no taker under the provisions of article 11 of this title, the personal representative shall reduce all such devises or distributive shares to cash and shall be ordered by the court to pay any balances remaining in his hands to the state treasurer; and the state shall be answerable for the same, without interest, anytime within twenty-one years after the same shall have been paid into the treasury, to such person or persons as shall appear to be legally entitled to the same, upon order of the court having administration of the estate. (2) Except as provided in subsection (1) of this section, any person, corporation, association, or other entity in possession of moneys paid to him or it or in his or its possession in any fiduciary capacity, and the said moneys are unclaimed, or the person to whom the person in possession may lawfully pay the same, or the person who may be entitled thereto is unknown or absent or fails to receive and properly receipt therefor, may pay said moneys to the state treasurer; and the state shall be answerable for the same, without interest, anytime within twentyone years after the same shall have been paid to the state treasurer; such payment to the state treasurer shall discharge the person making the same from any further liability or responsibility for such moneys. (3) After the lapse of twenty-one years from the time any such moneys shall be paid into the state treasury, and no claim therefor having been made and established by any person entitled thereto, said moneys shall become the property of the state and shall be transferred to the public school fund thereof, and the state shall not be liable therefor. Prior to said lapse of twenty-one years, such moneys may be invested by the state treasurer, and all interest or increment therefrom shall be credited to the general fund. (4) At the time any personal representative or other fiduciary pays into the state treasury any moneys, he or she shall make a written report thereof to the attorney general of the state, giving the attorney general such information as he or she may have, under oath or affirmation, touching the identity and antecedents of the deceased, as well as of any person supposed to be entitled to said moneys, to the end that fictitious claims to the moneys may be forestalled. The attorney general shall file such reports in his or her office and keep the index thereof, and a court Colorado Revised Statutes 2019 Page 310 of 600 Uncertified Printout shall not make an order for the repayment of any moneys so paid into the state treasury without the attorney general having first been served with written notice thirty days before the time of making application therefor. Upon the serving of such notice, the attorney general is classified as an interested person under this code and may appear and take all steps for and on behalf of the state that any person who might be a defendant to such action might take. The reasonable expense of any such action taken by the attorney general must be initially paid out of the attorney general's contingent fund; but, with the approval, order, and direction of the court having jurisdiction of the estate, any such reasonable expense incurred by the attorney general in conserving the estate and in investigating and litigating the claim of any alleged heir, devisee, distributee, or creditor must be repaid to said contingent fund out of the moneys in the estate or fund in controversy before final settlement thereof. (5) No estate or trust shall be permitted to remain open for the reason that an heir or devisee or beneficiary is unknown or cannot be located or refuses to receive and receipt for his share. All property subject to the provisions of subsection (1) of this section shall be paid to the state treasurer no later than three months after the entry of the order of final settlement or no later than six months after such property becomes eligible for distribution, whichever date is the earlier. Source: L. 73: R&RE, p. 1600, § 1. C.R.S. 1963: § 153-3-914. L. 81: (1), (4), and (5) amended, p. 920, § 1, effective June 9. L. 84: (4) amended, p. 1118, § 11, effective June 7. L. 2016: (4) amended, (HB 16-1094), ch. 94, p. 267, § 11, effective August 10. 15-12-915. Distribution to person under disability. (1) A personal representative or trustee may discharge his obligation to distribute to any person under legal disability: (a) By distributing to his conservator; or (b) By distributing to any person authorized by law to give a valid receipt and discharge for the distribution; or (c) The court may authorize distribution to a parent or relative of or a person having the custody and being responsible for the care of the person under disability for such person's use or benefit, subject to such terms and conditions as the court shall direct and approve; or (d) By distributing in any way authorized by the terms of the will or trust instrument or by the "Colorado Uniform Transfers to Minors Act", article 50 of title 11, C.R.S.; but, in making any such distribution, the personal representative or trustee has a duty to act as a prudent man with due regard to the obligations of a fiduciary. Source: L. 73: R&RE, p. 1601, § 1. C.R.S. 1963: § 153-3-915. L. 81: (1)(d) amended, p. 915, § 9, effective July 1. L. 84: (1)(d) amended, p. 394, § 7, effective July 1. 15-12-916. Apportionment of estate taxes. (1) For purposes of this section: (a) "Estate" means the gross estate of a decedent as determined for the purpose of federal estate tax and the estate tax payable to this state. (b) "Fiduciary" means personal representative or trustee. (c) "Person" means any individual, partnership, association, joint stock company, corporation, government, political subdivision, governmental agency, or local governmental agency. Colorado Revised Statutes 2019 Page 311 of 600 Uncertified Printout (d) "Person interested in the estate" means any person entitled to receive, or who has received, from a decedent or by reason of the death of a decedent any property or interest therein included in the decedent's estate. It includes a personal representative, conservator, and trustee. (e) "State" means any state, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. (f) "Tax" means the federal estate tax, the additional inheritance tax imposed by section 26-2-113, C.R.S., the Colorado estate tax imposed by article 23.5 of title 39, C.R.S., and interest and penalties imposed in addition to the tax. (2) Unless otherwise provided in the will or other dispositive instrument, the tax shall be apportioned among all persons interested in the estate, subject to the exceptions specified in this section. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for tax apportionment purposes. In all instances not involving a spouse unprovided for in a will as provided in section 15-11-301 or an election by a surviving spouse as provided in section 15-11-202, if the decedent's will or other dispositive instrument directs a method of apportionment of tax different from the method described in this code, the method described in the will or other dispositive instrument controls. In instances involving such a spouse unprovided for in a will or election, if the decedent's will or other dispositive instrument directs a method of apportionment of tax different from the method described in this code, the apportionment of tax to the spouse unprovided for in the will or to the surviving spouse shall be in accordance with the method described in this code, and the apportionment of tax to the remaining persons interested in the estate shall be in accordance with the method described in the will or other dispositive instrument. (3) (a) The court in which venue lies for the administration of the estate of a decedent, on petition for the purpose, may determine the apportionment of the tax. (b) If the court finds that it is inequitable to apportion interest and penalties in the manner provided in subsection (2) of this section, because of special circumstances, it may direct apportionment thereof in the manner it finds equitable. (c) If the court finds that the assessment of penalties and interest assessed in relation to the tax is due to delay caused by the negligence of the fiduciary, the court may charge him with the amount of the assessed penalties and interest. (d) In any action to recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this code, the determination of the court in respect thereto shall be prima facie correct. (4) (a) The personal representative or other person in possession of the property of the decedent required to pay the tax may withhold from any property distributable to any person interested in the estate, upon its distribution to him, the amount of tax attributable to his interest. If the property in possession of the personal representative or other person required to pay the tax and distributable to any person interested in the estate is insufficient to satisfy the proportionate amount of the tax determined to be due from the person, the personal representative or other person required to pay the tax may recover the deficiency from the person interested in the estate. If the property is not in the possession of the personal representative or the other person required to pay the tax, the personal representative or the other person required to pay the tax may recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this section. Colorado Revised Statutes 2019 Page 312 of 600 Uncertified Printout (b) If property held by the personal representative is distributed prior to final apportionment of the tax, the distributee shall provide a bond or other security for the apportionment liability in the form and amount prescribed by the personal representative. (5) (a) In making an apportionment, allowances shall be made for any exemptions granted, any classification made of persons interested in the estate, and for any deductions and credits allowed by the law imposing the tax. (b) Any exemption or deduction allowed by reason of the relationship of any person to the decedent or by reason of the purposes of the gift inures to the benefit of the person bearing such relationship or receiving the gift; but, if an interest is subject to a prior present interest which is not allowable as a deduction, the tax apportionable against the present interest shall be paid from principal. (c) Any deduction for property previously taxed and any credit for gift taxes or death taxes of a foreign country paid by the decedent or his estate inures to the proportionate benefit of all persons liable to apportionment. (d) Any credit for inheritance, succession, or estate taxes or taxes in the nature thereof applicable to property or interests includable in the estate inures to the benefit of the persons or interests chargeable with the payment thereof to the extent proportionately that the credit reduces the tax. (e) To the extent that property passing to or in trust for a surviving spouse or any charitable, public, or similar gift or devise is not an allowable deduction for purposes of the tax solely by reason of an inheritance tax or other death tax imposed upon and deductible from the property, the property is not included in the computation provided for in subsection (2) of this section, and to that extent no apportionment is made against the property. The provisions of this paragraph (e) do not apply to any case if the result would be to deprive the estate of a deduction otherwise allowable under section 2053(d) of the federal "Internal Revenue Code of 1986", as amended, of the United States, relating to deduction for state death taxes on transfers for public, charitable, or religious uses. (6) No interest in income and no estate for years or for life or other temporary interest in any property or fund is subject to apportionment as between the temporary interest and the remainder. The tax on the temporary interest and the tax, if any, on the remainder is chargeable against the corpus of the property or funds subject to the temporary interest and remainder. (7) Neither the personal representative nor other person required to pay the tax is under any duty to institute any action to recover from any person interested in the estate the amount of the tax apportioned to the person until the expiration of the three months next following final determination of the tax. A personal representative or other person required to pay the tax who institutes the action within a reasonable time after the three months' period is not subject to any liability or surcharge because any portion of the tax apportioned to any person interested in the estate was collectible at a time following the death of the decedent but thereafter became uncollectible. If the personal representative or other person required to pay the tax cannot collect from any person interested in the estate the amount of the tax apportioned to the person, the amount not recoverable shall be equitably apportioned among the other persons interested in the estate who are subject to apportionment. (8) A personal representative acting in another state or a person required to pay the tax domiciled in another state may institute an action in the courts of this state and may recover a proportionate amount of the federal estate tax, of an estate tax payable to another state, or of a Colorado Revised Statutes 2019 Page 313 of 600 Uncertified Printout death duty due by a decedent's estate to another state, from a person interested in the estate who is either domiciled in this state or who owns property in this state subject to attachment or execution. For the purposes of the action the determination of apportionment by the court having jurisdiction of the administration of the decedent's estate in the other state is prima facie correct. (9) If the liabilities of persons interested in the estate as prescribed by this code differ from those which result under the federal estate tax law, the liabilities imposed by the federal law shall control, and all other provisions of this code shall apply as if the amounts and liabilities prescribed by the federal law had been prescribed by subsection (2) of this section. Source: L. 73: R&RE, p. 1602, § 1. C.R.S. 1963: § 153-3-916. L. 75: (2) amended, p. 600, § 39, effective July 1. L. 79: (1)(f) amended, p. 1436, § 18, effective July 3. L. 81: (2) amended, p. 915, § 10, effective July 1. L. 83: (9) added, p. 660, § 1, effective April 21. L. 85: (2) amended, p. 605, § 1, effective April 30. L. 94: (2) amended, p. 1038, § 12, effective July 1, 1995. L. 2000: (5)(e) amended, p. 1846, § 29, effective August 2. L. 2002: (1)(f) amended, p. 1360, § 10, effective July 1. L. 2014: (2) amended, (HB 14-1322), ch. 296, p. 1240, § 13, effective August 6. PART 10 CLOSING ESTATES 15-12-1001. Formal proceedings terminating administration - testate or intestate order of general protection. (1) A personal representative or any interested person may petition for an order of complete settlement of the estate. The personal representative may petition at any time, and any other interested person may petition after one year from the appointment of the original personal representative; except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to determine testacy, if not previously determined, to consider the final account or compel or approve an accounting and distribution, to construe any will or determine heirs, and to adjudicate the final settlement and distribution of the estate. After notice to all interested persons and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any interested person. (2) If one or more heirs or devisees were omitted as parties in, or were not given notice of, a previous formal testacy proceeding, the court, on proper petition for an order of complete settlement of the estate under this section, and after notice to the omitted or unnotified persons and other interested parties determined to be interested on the assumption that the previous order concerning testacy is conclusive as to those given notice of the earlier proceeding, may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs. In the absence of objection by an omitted or unnotified person, evidence received in the original testacy proceeding shall constitute prima facie proof of due execution of any will previously admitted to Colorado Revised Statutes 2019 Page 314 of 600 Uncertified Printout probate, or of the fact that the decedent left no valid will if the prior proceedings determined this fact. Source: L. 73: R&RE, p. 1604, § 1. C.R.S. 1963: § 153-3-1001. Cross references: For the termination of a conservatorship, see § 15-14-431. 15-12-1002. Formal proceedings terminating testate administration - order construing will without adjudicating testacy. A personal representative administering an estate under an informally probated will or any devisee under an informally probated will may petition for an order of settlement of the estate which will not adjudicate the testacy status of the decedent. The personal representative may petition at any time, and a devisee may petition after one year, from the appointment of the original personal representative; except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to consider the final account or compel or approve an accounting and distribution, to construe the will and adjudicate final settlement and distribution of the estate. After notice to all devisees and the personal representative and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate under the will, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any devisee who is a party to the proceeding and those he represents. If it appears that a part of the estate is intestate, the proceedings shall be dismissed or amendments made to meet the provisions of section 15-121001. Source: L. 73: R&RE, p. 1604, § 1. C.R.S. 1963: § 153-3-1002. 15-12-1003. Closing estates - by sworn statement of personal representative. (1) Unless prohibited by order of the court and except for estates being administered in supervised administration proceedings, a personal representative may close an estate by filing with the court, no earlier than six months after the date of original appointment of a general personal representative for the estate or one year after the date of death, whichever occurs first, a verified statement stating that he or she, or a prior personal representative whom he or she has succeeded, has or have: (a) Fully administered the estate of the decedent by making payment, settlement, or other disposition of all lawful claims, expenses of administration and estate, inheritance and other death taxes, except as specified in the statement, and that the assets of the estate have been distributed to the persons entitled. If any claims remain undischarged, the statement shall state whether the personal representative has distributed the estate subject to possible liability with the agreement of the distributees or it shall state in detail other arrangements which have been made to accommodate outstanding liabilities; and (b) Sent a copy thereof to all distributees of the estate and to all creditors or other claimants of whom he is aware whose claims are neither paid nor barred and has furnished a full account in writing of his administration to the distributees whose interests are affected thereby. Colorado Revised Statutes 2019 Page 315 of 600 Uncertified Printout (2) If no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates. Source: L. 73: R&RE, p. 1605, § 1. C.R.S. 1963: § 153-3-1003. L. 77: IP(1) amended, p. 834, § 19, effective July 1. L. 90: IP(1) and (1)(a) amended, p. 906, § 5, effective July 1. L. 94: IP(1) amended, p. 770, § 3, effective April 20. 15-12-1004. Liability of distributees to claimants. After assets of an estate have been distributed and subject to section 15-12-1006, an undischarged claim not barred may be prosecuted in a proceeding against one or more distributees. No distributee shall be liable to claimants for amounts received as exempt property or family allowances or for amounts in excess of the value of his other distributions as of the time of such distributions. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who shall have failed to notify other distributees of the demand made upon him by the claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted against him loses his right of contribution against other distributees. Source: L. 73: R&RE, p. 1605, § 1. C.R.S. 1963: § 153-3-1004. L. 77: Entire section amended, p. 834, § 20, effective July 1. 15-12-1005. Limitations on proceedings against personal representative. Unless previously barred by adjudication and except as provided in the closing statement, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within six months after the filing of the closing statement. The rights thus barred do not include rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent's estate. Source: L. 73: R&RE, p. 1606, § 1. C.R.S. 1963: § 153-3-1005. 15-12-1006. Limitations on actions and proceedings against distributees. (1) Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or otherwise barred, the claim of any claimant to recover from a distributee who is liable to pay the claim, and the right of any heir or devisee or of a successor personal representative acting in their behalf, to recover property improperly distributed or the value thereof from any distributee is forever barred as follows: (a) A claim by a creditor of the decedent is forever barred at one year after the decedent's death. (b) Any other claimant or any heir or devisee is forever barred at the later of the following: (I) Three years after the decedent's death; or (II) One year after the time of distribution thereof. Colorado Revised Statutes 2019 Page 316 of 600 Uncertified Printout (2) This section does not bar an action to recover property or value received as the result of fraud. Source: L. 73: R&RE, p. 1606, § 1. C.R.S. 1963: § 153-3-1006. L. 90: Entire section amended, p. 907, § 6, effective July 1. 15-12-1007. Certificate discharging liens securing fiduciary performance. After his appointment has terminated, the personal representative, his sureties, or any successor of either, upon the filing of a verified application showing, so far as is known by the applicant, that no action concerning the estate is pending in any court, is entitled to receive a certificate from the registrar that the personal representative appears to have fully administered the estate in question. The certificate evidences discharge of any lien on any property given to secure the obligation of the personal representative in lieu of bond or any surety, but does not preclude action against the personal representative or the surety. Source: L. 73: R&RE, p. 1606, § 1. C.R.S. 1963: § 153-3-1007. 15-12-1008. Subsequent administration. If, after an estate has been settled and the personal representative discharged or after one year after a closing statement has been filed, it is determined that the estate has not been fully administered or fully distributed by reason of subsequently discovered property or for any other reason, the court, upon petition of any interested person, and upon notice as it directs, may appoint the same or a successor personal representative to complete the administration or distribution of the estate. If a new appointment is made, unless the court orders otherwise, the provisions of this code apply as appropriate; but no claim previously barred may be asserted in the subsequent administration. Source: L. 73: R&RE, p. 1606, § 1. C.R.S. 1963: § 153-3-1008. L. 79: Entire section amended, p. 651, § 13, effective July 1. 15-12-1009. Estates not closed after three years or more. (1) When records of the court indicate no action has been taken in an estate for a period of three years or more, the court may, on its own motion, and after notice to the attorney of record, if available, or if there is no attorney of record, then to the personal representative, enter an order closing the estate without further accounting. Such closure may likewise be ordered upon the motion of any interested person, as defined in section 15-10-201 (27), or upon motion of the attorney of record. Any order in such case shall provide for the closing of the estate without further accounting, and such order shall not discharge the personal representative or any other person from any liability to the estate, the court, or any other person; except that sureties upon any bond posted in such proceedings shall be released as to any claim arising after closure of the estate under such circumstances. (2) Unless the court has reason to believe the personal representative's conduct in the administration of the estate has been improper, closure of the estate as provided in this section shall be without further accounting, report, or hearing. (3) Upon motion of any interested person, an estate closed pursuant to this section shall be reopened by the court. Colorado Revised Statutes 2019 Page 317 of 600 Uncertified Printout (4) This section shall be applicable to all decedents' estates, whether instituted before or after the effective date of this code. Source: L. 73: R&RE, p. 1606, § 1. C.R.S. 1963: § 153-3-1009. L. 79: Entire section R&RE, p. 659, § 1, effective February 22; entire section R&RE, p. 657, § 2, effective May 25. L. 87: (1) amended, p. 602, § 3, effective July 1. L. 94: (1) amended, p. 1038, § 13, effective July 1, 1995. Cross references: For effective date of this code, see § 15-17-101. PART 11 COMPROMISE OF CONTROVERSIES 15-12-1101. Effect of approval of agreements involving trusts, inalienable interests, or interests of third persons. A compromise of any controversy as to admission to probate of any instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of any probated will, the rights or interests in the estate of the decedent, of any successor, or the administration of the estate, if approved in a formal proceeding in the court for that purpose, is binding on all the parties thereto including those unborn, unascertained, or who could not be located. An approved compromise is binding even though it may affect a trust or an inalienable interest. A compromise does not impair the rights of creditors or of taxing authorities who are not parties to it. Source: L. 73: R&RE, p. 1607, § 1. C.R.S. 1963: § 153-3-1101. 15-12-1102. Procedure for securing court approval of compromise. (1) The procedure for securing court approval of a compromise is as follows: (a) The terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons and parents acting for any minor child having beneficial interests or having claims which will or may be affected by the compromise. Execution is not required by any person whose identity cannot be ascertained or whose whereabouts is unknown and cannot reasonably be ascertained. (b) Any interested person, including the personal representative or a trustee, then may submit the agreement to the court for its approval and for execution by the personal representative, the trustee of every affected testamentary trust, and other fiduciaries and representatives. (c) After notice to all interested persons or their representatives, including the personal representative of the estate and all affected trustees of trusts, the court, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, shall make an order approving the agreement and directing all fiduciaries under its supervision to execute the agreement. A minor child represented only by his parents may be bound only if his parents join with other competent persons in execution of the compromise, and if there is no conflict of Colorado Revised Statutes 2019 Page 318 of 600 Uncertified Printout interest between parent and child. Upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement. Source: L. 73: R&RE, p. 1607, § 1. C.R.S. 1963: § 153-3-1102. PART 12 COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT ADMINISTRATION PROCEDURE FOR SMALL ESTATES AND SUMMARY 15-12-1201. Collection of personal property by affidavit. (1) At any time ten or more days after the date of death of a decedent, any person indebted to the decedent or having possession of any personal property, including but not limited to funds on deposit at, or any contents of a safe deposit box at, any financial institution; tangible personal property; or an instrument evidencing a debt, obligation, stock, chose in action, or stock brand belonging to the decedent shall pay or deliver such property to a person claiming to be a successor of the decedent or acting on behalf of a successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating: (a) The fair market value of property owned by the decedent and subject to disposition by will or intestate succession at the time of his or her death, wherever that property is located, less liens and encumbrances, does not exceed twice the amount set forth in section 15-11-403, as adjusted by section 15-10-112; (b) At least ten days have elapsed since the death of the decedent; (c) No application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; and (d) Each person is entitled to payment or delivery of the property as set forth in such affidavit. (1.5) 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 subject to subsection (1) of this section. A successor or person acting on behalf of a successor under subsection (1) of this section may endorse an instrument that is so payable and collect such amount. (2) A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (1) of this section. (3) The public official having cognizance over the registered title of any personal property of the decedent shall change the registered ownership from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (1) of this section. (3.5) In the event that an instrument or other evidence of an indebtedness is secured by real property, in order to act on behalf of the holder of the indebtedness secured by a mortgage, deed of trust, or other security document, the person making the affidavit must record, with the clerk and recorder of the county where the real property is located, a copy of the affidavit and a copy of the decedent's death certificate or a verification of death document. Colorado Revised Statutes 2019 Page 319 of 600 Uncertified Printout (3.7) Pursuant to section 15-10-111 (1)(a)(I) and (1)(b), a safe deposit box may be entered and its contents shall be delivered upon presentation of an affidavit made pursuant to subsection (1) of this section. (4) 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 under this section are the same as the duties of an agent to the agent's principal, and the breach of such duty is subject to the same remedies as are available under the law of this state with respect to an agent subject to part 7 of article 14 of this title, including but not limited to the remedies available under part 5 of article 10 of this title. A successor who makes, presents, or uses such an affidavit where there are two or more successors is a person acting on behalf of each other successor. Source: L. 73: R&RE, p. 1607, § 1. C.R.S. 1963: § 153-3-1201. L. 75: (1)(d) amended, p. 600, § 40, effective July 1. L. 77: IP(1) amended and (3) added, p. 835, § 21, effective July 1. L. 81: (1)(a) amended, p. 915, § 11, effective July 1. L. 91: (1)(a) amended, p. 1449, § 12, effective July 1. L. 2002: (1)(a) amended, p. 652, § 7, effective July 1. L. 2011: (1)(a) amended, (SB 11-083), ch. 101, p. 306, § 11, effective August 10. L. 2013: IP(1) amended, (SB 13-077), ch. 190, p. 771, § 6, effective August 7. L. 2014: IP(1), (1)(a), and (1)(d) amended and (1.5), (3.5), (3.7), and (4) added, (HB 14-1322), ch. 296, p. 1234, § 6, effective August 6. Editor's note: The amendments to this section made after July 1, 1974, are not affected by the provisions of § 15-12-1205. 15-12-1202. Effect of affidavit. (1) The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if he or she dealt with a personal representative of the decedent. He or she is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. (2) If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of the right of persons entitled thereto in a proceeding brought for the purpose by or on behalf of such persons. (3) If a proof of right has been established in a proceeding under subsection (2) of this section, 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 belonging to the decedent, as provided in section 15-12-1201, shall be liable for all costs, including reasonable attorney fees and costs, incurred by or on behalf of the persons entitled thereto. The person to whom an affidavit was delivered bears the burden of proving reasonable cause by a preponderance of the evidence. (4) Any person to whom payment, delivery, transfer, or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right. Source: L. 73: R&RE, p. 1608, § 1. C.R.S. 1963: § 153-3-1202. L. 2014: Entire section amended, (HB 14-1322), ch. 296, p. 1235, § 7, effective August 6. Colorado Revised Statutes 2019 Page 320 of 600 Uncertified Printout 15-12-1203. Small estates - summary administrative procedure. If it appears from the inventory and appraisal that the value of the entire estate, less liens and encumbrances, does not exceed the value of personal property held by or in the possession of the decedent as fiduciary or trustee, exempt property allowance, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in section 15-12-1204. Source: L. 73: R&RE, p. 1608, § 1. C.R.S. 1963: § 153-3-1203. L. 75: Entire section amended, p. 600, § 41, effective July 1. 15-12-1204. Small estates - closing by sworn statement of personal representative. (1) Unless prohibited by order of the court, and except for estates being administered by supervised personal representatives, a personal representative may close an estate administered under the summary procedures of section 15-12-1203 by filing with the court, at any time after disbursement and distribution of the estate, a verified statement stating that: (a) To the best knowledge of the personal representative, the value of the entire estate, less liens and encumbrances, did not exceed the value of personal property held by or in the possession of the decedent as fiduciary or trustee, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent; (b) The personal representative has fully administered the estate by disbursing and distributing it to the persons entitled thereto; and (c) The personal representative has sent a copy of the closing statement to all distributees of the estate and to all creditors or other claimants of whom he is aware whose claims are neither paid nor barred and has furnished a full account in writing of his administration to the distributees whose interests are affected. (2) If no actions or proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates. (3) A closing statement filed under this section has the same effect as one filed under section 15-12-1003. Source: L. 73: R&RE, p. 1608, § 1. C.R.S. 1963: § 153-3-1204. L. 75: (1)(a) amended, p. 600, § 42, effective July 1. Cross references: For remedies for fraud or intentional misstatements, see § 15-10-106. 15-12-1205. Time of taking effect - provisions for transition. The provisions of sections 15-12-1201 and 15-12-1202 became effective on July 1, 1974, regardless of the date of the death of the decedent. Source: L. 75: Entire section added, p. 601, § 43, effective July 1. Colorado Revised Statutes 2019 Page 321 of 600 Uncertified Printout Editor's note: This section does not apply to the amendments made to § 15-12-1201 after July 1, 1974. PART 13 DETERMINATION OF HEIRS, DEVISEES, AND PROPERTY INTERESTS BY SPECIAL PROCEEDING Editor's note: Articles 10 to 17 of this title were repealed and reenacted in 1973, and this part 13 was subsequently repealed and reenacted in 1993, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this part 13 prior to 1993, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note following this article heading. Former C.R.S. section numbers prior to 1993 are shown in editor's notes following those sections that were relocated. 15-12-1301. Definitions. As used in this part 13, unless the context otherwise requires: (1) "Interested person" means an owner by descent or succession, an alleged heir or devisee of a decedent, any other person claiming an ownership interest derived from an owner by descent or succession, or an alleged heir or devisee in any property the descent or succession of which is to be determined pursuant to this part 13, but excluding any person holding a nonownership interest in such property. (2) "Owner by descent or succession" means a person in whom all or any part of the decedent's interest in the property vests as a result of intestate or testate succession. (3) "Property" means the property interest owned by the decedent at the time of death without regard to other property interests which may be owned by other persons in the same parcel of real property or item of personal property. Source: L. 93: Entire part R&RE, p. 1241, § 1, effective July 1. L. 2016: (1) and (2) amended, (SB 16-133), ch. 145, p. 429, § 2, effective August 10. 15-12-1302. Petition to determine heirship - devisees - interests in property. (1) When any person dies leaving an interest in real property in this state, or dies domiciled in this state leaving an interest in personal property wherever located, and there is no probate proceeding presently pending for such person in any jurisdiction, any interested person or person who may be affected by the ownership of such property may petition the court having jurisdiction over probate matters in and for the county in which the real property or some portion thereof is situated, or, if the proceeding is to affect an interest in personal property, the county in which the decedent was domiciled or resided at the time of death to determine: (a) The heirs of the decedent and the descent of all or any portion of intestate property; or (b) The devisees of the decedent under a will and the succession of all or any portion of testate property. Colorado Revised Statutes 2019 Page 322 of 600 Uncertified Printout (2) The petition may include more than one decedent if they are related by successive interests in the property. (3) The petition must be in writing, signed, and verified, and it must include the following: (a) The name and address of the petitioner; (b) A statement of the interest of the petitioner; (c) A description of the property, including a legal description if the property is real property; (d) As to each decedent addressed in the petition: (I) The name of the decedent; (II) The age of the decedent at the decedent's death; (III) A statement of the date and place of the decedent's death; (IV) A statement that one year has passed since the decedent's date of death; (V) A statement that either administration of the decedent's estate has not been granted or commenced in any jurisdiction, or, if administration has been granted or commenced in any jurisdiction, the estate has been settled without determination of the descent or succession of all or a portion of the decedent's property; (VI) A statement as to the county and state of the decedent's last place of domicile or residence; (VII) A statement of whether the decedent died intestate or testate, and, if testate, the additional information required by subsection (4) of this section; (VIII) The names, addresses, and relationships of all interested persons; (IX) A statement containing the age and disability of any interested person who is known to the petitioner to be a minor or under legal disability; (X) A description of the decedent's interest in the property the descent or succession of which is to be determined through the petition, which description includes property located in the county where the petition is filed and real property located in any other Colorado county; (XI) A description of the interests held by all owners by descent or succession for the decedent in the property; and (XII) A statement that the relief sought by the petition is consistent with any previous administration of the decedent's property; and (e) If the name or address of any interested person is unknown, a statement detailing the reasonable, diligent efforts made to determine the name or address of the interested person. (4) If the decedent died testate, one of the following conditions must be satisfied: (a) If the decedent's will has been previously admitted to probate, the petition must include the name of the court that admitted the will to probate, the case number, and the date upon which the will was admitted to probate, and the petitioner shall provide a certified copy of the will and the order admitting the will to probate; or (b) If the admissibility of the decedent's will to probate has not been previously determined by a court, the petition must include a statement that the original will has been lodged with a court, that the petitioner believes the will to be the decedent's last will, that the will was validly exe