2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 12 - Probate of Wills and Administration
Part 2 - Venue for Probate and Administration; Priority to Administer; Demand for Notice
§ 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:
   1. The person with priority as determined by a probated will including a person nominated by a power conferred in a will;
   2. 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;

   3. Other devisees of the decedent;
   4. 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.;

   5. Other heirs of the decedent;
   6. Forty-five days after the death of the decedent, any creditor.

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:
   1. 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;
   2. 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:
   1. Under the age of twenty-one;
   2. 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.

History. 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. History. 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.

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

COMMENT

The priorities applicable to informal proceedings are applicable to formal proceedings. However, if the proceedings are formal, a person with a substantial interest may object to the selection of one having priority other than because of will provisions. The provision for majority approval which is triggered by such a protest can be handled in a formal proceeding since all interested persons will be before the Court, and a judge capable of handling discretionary matters, will be involved.

In considering this section as it relates to a devise to a trustee for various beneficiaries, it is to be noted that “interested persons” is defined by 1-201(20) to include fiduciaries. Also, 1-403(2) and 3-912 show a purpose to make trustees serve as representatives of all beneficiaries. The provision in (d) is consistent.

If a state's statutes recognize a public administrator or public trustee as the appropriate agency to seek administration of estates in which the state may have an interest, it would be appropriate to indicate in this section the circumstances under which such an officer may seek administration. If no officer is recognized locally, the state could claim as heir by virtue of 2-105.

Subsection (g) was inserted in connection with the decision to abandon the effort to describe ancillary administration in Article IV. Other provisions in Article III which are relevant to administration of assets in a state or other than that of the decedent's domicile are 1-301 (territorial effect), 3-201 (venue), 3-308 (informal appointment for non-resident decedent delayed 30 days), 3-309 (no informal appointment here if a representative has been appointed at domicile), 3-815 (duty of personal representative where administration is in more than one state) and 4-201 to 4-205 (local recognition of foreign personal representatives).

The meaning of “spouse” is determined by Section 2-802.

Law reviews. For article, “Administration of Intestate Estates”, see 29 Rocky Mt. L. Rev. 571 (1957). For article, “Choosing a Fiduciary”, see 15 Colo. Law. 203 (1986). For article, “Decedents' Creditors and Nonprobate Assets”, see 15 Colo. Law. 2190 (1986). For article, “Dealing With a Decedent's Mineral Interests”, see 44 Colo. Law. 53 (Feb. 2015).

Annotator's note. Since § 15-12-203 is similar to repealed § 152-7-1, CRS 53, CSA, C. 176, § 74, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Section 15-12-619 of this title modifies this section insofar as it defines the right to administer estates in any county having a population of more than 20,000. In re Ove's Estate, 114 Colo. 286 , 163 P.2d 651 (1945).

Exclusive right of husband to administer does not exist. The common-law right of the husband surviving the wife to exclusively administer upon and enjoy her personal estate does not here exist. Goodrich v. Treat, 3 Colo. 408 (1877).

Statutes which establish priorities of those preferentially entitled to administer estates are mandatory, and may not be disregarded by courts if the person entitled to the preference is not otherwise disqualified, and this disqualification must be made to appear by competent evidence, and the burden of showing the disqualification is upon the one asserting it. Thompson v. Jack, 90 Colo. 470 , 10 P.2d 947 (1932); In re Ove's Estate, 114 Colo. 286 , 163 P.2d 651 (1945).

In a collateral proceeding the court may not inquire whether the letters were issued to a person entitled to them or not. As the judge of probate had competent jurisdiction of the cause, the regularity of the administrator's appointment can only be questioned in a direct proceeding for that purpose. Denver, etc., Ry. v. Woodward, 4 Colo. 1 (1877).

This section gives husband, widow, or next of kin a preferential right of administration. Rosenboom v. Cline, 90 Colo. 1 , 6 P.2d 453 (1931).

Child who was sole heir of natural father had statutory priority to be appointed personal representative of father's estate pursuant to the provisions of this section and trial court improperly denied the child's motion to remove the personal representative as the child was not bound by the court's prior rulings when she was not a party or in privity with the movant. Matter of Estate of Bomareto, 757 P.2d 1135 (Colo. App. 1988).

Where probate court finds that appointment of a special administrator is necessary under § 15-12-614 , court may appoint any proper person as such under § 15-12-615 notwithstanding this section's provisions governing priority of appointment of a personal representative. In re Estate of Franchs, 722 P.2d 422 (Colo. App. 1986).

It is immaterial who presents the petition and facts as a result of which administration is granted. Rosenboom v. Cline, 90 Colo. 1 , 6 P.2d 453 (1931).

Appointment of “next of kin” rests in the discretion of the court. This section provides that in granting administration the husband or widow, if such there be, shall be preferred. If none such, or if that right be relinquished, then the preference, for 45 days, goes to the “other heirs of the decedent”. In re Woody's Estate, 93 Colo. 169 , 24 P.2d 754 (1933).

Parties entitled to apply for administration may waive their rights. Denver, etc., Ry. v. Woodward, 4 Colo. 1 (1877).

Where petition of husband states grounds for relief from fraud. Petition of a surviving husband who had not applied for letters of administration within the period of time prescribed by this section to remove the administrator of his wife's estate and to set aside an order allowing a claim against it alleged to have been procured by fraud, states grounds for the relief sought. Koshir v. Snedec, 82 Colo. 245 , 259 P. 4 (1927).

Where appointment of noncreditor is reversible error. Appointment of a noncreditor as the administrator of an estate over the objection and instead of a petitioning creditor is reversible error. In re Webb's Estate, 90 Colo. 470 , 10 P.2d 947 (1932).

No power of nomination for the appointment of administrators is conferred upon creditors of an estate by this section, and they have nothing to relinquish so far as such appointments are concerned. In re Webb's Estate, 90 Colo. 470 , 10 P.2d 947 (1932).

Holder of option to purchase land at death of decedent is not “creditor” of the estate within the meaning of subsection (1)(f) and cannot instigate the appointment of a personal representative. Brown v. Brown, 43 Colo. App. 535, 608 P.2d 840 (1980).

The granting of letters of administration is a judicial act of the judge. He may judicially determine whether he has jurisdiction over the matters before him, must determine the approximate value of the estate, determine the person to be appointed administrator, fix and approve the bond required, and administer the oath. These acts require judicial discretion. Jackson v. Bates, 133 Colo. 248 , 293 P.2d 962 (1956).

Nominee is conferred with priority status of nominating daughters. Although nominee had no priority status in his own right, the daughters' priority was conferred to him. In re Estate of Newton, 313 P.3d 619 (Colo. App. 2011).