2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 12 - Probate of Wills and Administration
Part 4 - Formal Testacy and Appointment Proceedings
§ 15-12-412. 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:
   1. 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;
   2. 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;
   3. 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:
      1. 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;
      2. 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;
      3. Twelve months after the entry of the order sought to be vacated.

   4. 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;
   5. 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 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.

History. Source: L. 73: R&RE, p. 1577, § 1. C.R.S. 1963: § 153-3-412. History. Source: L. 73: R&RE, p. 1577, § 1. C.R.S. 1963: § 153-3-412.

Law reviews. For article, “Colorado Bar Association Meeting”, see 23 Dicta 261 (1946). For article, “A Potpourri of Probate Practice Aids”, see 11 Colo. Law. 1850 (1982).

A statute of limitations should not be applied to cases not clearly within its provisions. Glenn v. Mitchell, 71 Colo. 394 , 207 P. 84 (1922).

This section involves no question of jurisdiction but is merely regulatory, determining the period in which an order of probate may be attacked, under circumstances named, and the conclusiveness of such probate, if not so questioned. Glenn v. Mitchell, 71 Colo. 394 , 207 P. 84 (1922).

Remedy of heir. The only remedy of the heir under this section seems to be to appear and object at the time of the hearing or, within one year thereafter, to ask for a revocation of the order admitting the will to probate. In re Dunphy's Will, 60 Colo. 196 , 153 P. 89 (1915).

One purpose of this section is to permit the heir, upon whom the law casts the property at the death of the ancestor, to come into court and object to the probate of a purported will which disinherits or cuts him off from participating in the ancestor's estate, and if he fails to do so, to bar any right of objecting which he might have had, within one year after probate. In re Dunphy's Will, 60 Colo. 196 , 153 P. 89 (1915).

Order admitting will to probate is conclusive of the legality of its contents. In this case, the husband waived his right of election by appearing at the probate of the will and filing his written consent to and acceptance of its provisions, and the will was thereupon duly and solemnly admitted to probate. By his election thus made, he was irrevocably bound, and the order admitting the will to probate is conclusive of the legality and validity of its contents, as against all persons under this section. Deutsch v. Rohlfing, 22 Colo. App. 543, 126 P. 1123 (1912).

Subsection (1)(c)(III) is designed to encourage speedy resolution of probate proceedings, for the benefit of all heirs and beneficiaries. Church of Jesus Christ of Latter Day Saints v. Tally, 654 P.2d 866 (Colo. App. 1982).

Section fixes limitation on right to question finality of proceedings. This section deals with the effect of probate orders and fixes a limitation upon the right of persons to question the finality of proceedings resulting in the admission or denial of a foreign will to probate in this state. Reed v. McLaughlin, 128 Colo. 581 , 265 P.2d 691 (1954).

Probate code's statute of limitations is applicable to action seeking imposition of a constructive trust upon the assets of an estate because such an imposition would effectively negate the probate court's determination of heirship. Mitchem v. First Interstate Bank of Denver, 802 P.2d 1141 (Colo. App. 1990).

Potential devisee is entitled to notice of hearing during which court will determine validity of will. If, at time of hearing, the court had yet to determine the validity of the will, the potential devisee must be given notice in order to have the opportunity to meet her burden to prove decedent's intent and overcome any presumption of revocation. In re Estate of Evarts, 166 P.3d 161 (Colo. App. 2007).

Statute of limitations should have been tolled with respect to potential devisee's claim if he or she did not receive the statutorily required notice. In re Estate of Evarts, 166 P.3d 161 (Colo. App. 2007).

Applied in In re Estate of Decker, 194 Colo. 143 , 570 P.2d 832 (1977).