2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 12 - Probate of Wills and Administration
Part 6 - Personal Representative; Appointment, Control, and Termination of Authority
§ 15-12-606. Terms and Conditions of Bonds
- The following requirements and provisions apply to any bond required by sections 15-12-604 and 15-12-605:
- 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;
- 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.
- 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.
- 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;
- 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;
- 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.
- 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.
History. 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. History. 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.
Law reviews. For article, “In Re: The Mourners”, see 6 Dicta 7 (1929).
Annotator's note. Since § 15-12-606 is similar to repealed § 153-10-45, C.R.S. 1963, CSA, C. 176, § 244, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
All that is required to expose the surety to liability on the executor's bond is the commission of the wrongful act. People ex rel. Barker v. Transamerica Ins. Co., 385 F.2d 61 (10th Cir. 1967).
Under this section the obligee in an administrator's bond may sue all or any one or more of the obligors, and where an action was brought against the principal and surety on such bond the action could be dismissed as to the principal and continued as to the surety without discharging the surety from liability. McAllister v. People ex rel. Brisbane, 28 Colo. 156 , 63 P. 308 (1900).
One sued as an administrator cannot be joined with other defendants who are sued in their individual capacity upon the bond. Metz v. People ex rel. Reid, 6 Colo. App. 57, 40 P. 51 (1895).
It is not essential that guardian be made a party to the action or that a judgment be first obtained. It is not essential to a recovery against sureties on a guardian's bond, in an action against them on behalf of the minors for breaches of its conditions by the guardian, that the guardian be made party to the action, or that a judgment should first have been obtained against him which he had failed to satisfy. The instrument itself stipulates for the faithful discharge by the guardian of the obligations imposed on him by this section, which provides that it may be put in suit against all or any one of the obligors to the use and benefit of any person entitled by breach thereof. Proceedings for accounting or orders of court need not precede an action for a breach of the bond. Gebhard v. Smith, 1 Colo. App. 342, 29 P. 303 (1892).
Section permits recovery by any person who may be injured. This and the next preceding section permit a recovery on an administrator's bond by any person who may be injured by the conduct of the representative. The enactment is a very broad one, and, in general, provides that any violation of the provisions of articles 10 to 17 of this title shall be treated as a devastavit, and shall entitle the party to maintain his suit. Metz v. People ex rel. Reid, 6 Colo. App. 57, 40 P. 51 (1895).
It only gives strangers a right to sue on the bond when they have sustained some damage which they show. When the plaintiffs failed to prove that they had a claim against the estate, or that the administrator had received any assets, they failed to establish some of the essential elements of their cause of action. They were not injured by the misconduct of the administrator, and consequently there came to them no cause of action on the bond. Metz v. People ex rel. Reid, 6 Colo. App. 57, 40 P. 51 (1895).