2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 12 - Probate of Wills and Administration
Part 4 - Formal Testacy and Appointment Proceedings
§ 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.

History. Source: L. 73: R&RE, p. 1576, § 1. C.R.S. 1963: § 153-3-408. History. Source: L. 73: R&RE, p. 1576, § 1. C.R.S. 1963: § 153-3-408.

Law reviews. For article, “In Re: The Mourners”, see 6 Dicta 7 (1929). For article, “Colorado Bar Association Meeting”, see 23 Dicta 261 (1946). For article, “Five New Real Estate Standards for Denver”, see 26 Dicta 131 (1949). For article, “Curative Statutes of Colorado Respecting Titles to Real Estate”, see 26 Dicta 321 (1949). For article, “Family Law, Probate Law, and Constitutional Law”, see 31 Dicta 471 (1954). For comment on Reed v. McLaughlin, appearing below, see 26 Rocky Mt. L. Rev. 337 (1954). For article, “Administration of Testate Estates”, see 29 Rocky Mt. L. Rev. 557 (1957). For article, “Another Decade of Colorado Conflicts”, see 33 Rocky Mt. L. Rev. 139 (1961).

Annotator's note. Since § 15-12-408 is similar to repealed CSA, C. 176, § 62, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Constitutionally required notice. Notice by publication in estate proceedings is constitutionally insufficient and inconsistent with Mullane v. Central Hanover Bank & Trust Co., (339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950)), and must be supplemented by personal service or mailing to interested persons whose names and addresses are known, or by reasonable diligence can be ascertained. Wimbush v. Wimbush, 41 Colo. App. 289, 587 P.2d 796 (1978).

Waiver of notice limited by fairness. To construe waiver of further notice of the admission to probate hearing of a will to include waiver of notice of the subsequent dismissal and intestacy proceedings would be fundamentally unfair. Wimbush v. Wimbush, 41 Colo. App. 289, 587 P.2d 796 (1978).

A “foreign will” is (a) an instrument in writing, (b) which has been admitted to probate as a last will, (c) before a court other than a court of this state, and (d) which court is authorized by the laws of such jurisdiction to admit the same to probate. Reed v. McLaughlin, 128 Colo. 581 , 265 P.2d 691 (1954).

This section sets forth procedures for probating a foreign will in this state. Sayre v. Sage, 47 Colo. 559 , 108 P. 160 (1910); Reed v. McLaughlin, 128 Colo. 581 , 265 P.2d 691 (1954).

There is an intent on the part of the general assembly to treat a foreign will as a validly executed will in Colorado. Reed v. McLaughlin, 128 Colo. 581 , 265 P.2d 691 (1954).

Foreign will probated in another state is entitled to probate in this state. A will admitted to probate in the court of another state having jurisdiction of such matters is, on the presentation of the duly certified record thereof, entitled to be admitted to probate and record in this state, and letters testamentary or of administration may issue thereon as in other cases. The probate and record, under such circumstances, would seem to be mandatory; but the court is invested with discretion in the matter of issuing letters, but the discretion is not arbitrary. It must be sound and reasonable such as will secure the administration of the estate according to the will of the deceased, as well as with due regard to local creditors. Corrigan v. Jones, 14 Colo. 311 , 23 P. 913 (1890).

Probate procedure concerning a foreign will devising real estate in this state permits the transfer thereof in accordance with the terms of such will, subject to the statutory rights of creditors and such a will, as applied to real property in this state, is taken as valid unless a contest is instituted on or before the day set for the probate hearing and is successfully maintained. Foster v. Kragh, 107 Colo. 389 , 113 P.2d 666 (1941).

Laws of state in which foreign will devises property must permit it. The probate of a will in one state does not establish its validity as a will devising real estate in another state unless the laws of the latter permit it. Sayre v. Sage, 47 Colo. 559 , 108 P. 160 (1910); Foster v. Kragh, 107 Colo. 389 , 113 P.2d 666 (1941).

Situs courts have usually applied their own local law to determine the validity of a will insofar as it affects interests in local land even though the testator died domiciled in another state. Wimbush v. Wimbush, 41 Colo. App. 289, 587 P.2d 796 (1978).

The full faith and credit clause of the federal constitution is not denied by disregarding the decree of probate of a foreign will. Foster v. Kragh, 107 Colo. 389 , 113 P.2d 666 (1941).

Filing of objections alone cannot destroy effect of section. If this section gives validity to the will in the absence of objection to the formality of execution thereof, the mere filing of an objection cannot logically be held to destroy the force and effect of the section. Reed v. McLaughlin, 128 Colo. 581 , 265 P.2d 691 (1954).

Issue of residency. In this section it is provided that a copy of a foreign will with appropriate accompanying documents showing probate in the foreign jurisdiction, on presentation to the court in this state, gives the court the right to inquire into only one issue. This issue is “Whether the decedent was, or was not, a resident of this state”. If the court finds that the decedent was not a resident of this state the court shall by order admit such foreign will to probate without further proof of the execution thereof. Reed v. McLaughlin, 128 Colo. 581 , 265 P.2d 691 (1954).