2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 12 - Probate of Wills and Administration
Part 7 - Duties and Powers of Personal Representatives
§ 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.

History. 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 July 1, 1995. L. 2009: Entire section amended,(HB 09-1241), ch. 169, p. 761, § 17, effective April 22. History. 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 July 1, 1995. L. 2009: Entire section amended,(HB 09-1241), ch. 169, p. 761, § 17, effective April 22.

Law reviews. For article, “Practical Administrative Problems in Average-Sized Estates”, see 27 Dicta 285 (1950). For article, “The Awkward Status of Colorado Real Property in a Decedent's Estate”, see 41 Den. L. Ctr. J. 129 (1964).

Annotator's note. Since § 15-12-709 is similar to repealed § 152-10-13, CRS 53, CSA, C. 176, § 115, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

This section expressly confers the power upon an administrator and makes it his duty to sue for, recover, and preserve the estate, both real and personal. Grover v. Clover, 69 Colo. 72 , 169 P. 578 (1917); De Ford v. New York Life Ins. Co., 75 Colo. 146 , 224 P. 1049 (1924); Swartz v. Rosenkrans, 78 Colo. 167 , 240 P. 333 (1925); Norris v. Bradshaw, 92 Colo. 34 , 18 P.2d 467 (1932); Weaver v. Weaver, 99 Colo. 74 , 60 P.2d 227 (1936); Gushurst v. Benham, 151 Colo. 159 , 376 P.2d 687 (1962).

That duty implies the further one to employ counsel for the purpose. People ex rel. Eaton v. El Paso County Court, 74 Colo. 123 , 219 P. 215 (1923).

Aggrieving administrator. Any injury to the interests of heirs, beneficiaries, or creditors of the decedent arising through a diminution of the assets of the estate, even though not aggrieving the administrator personally, in legal effect is a grievance affecting him in his fiduciary and representative capacity. Gushurst v. Benham, 151 Colo. 159 , 376 P.2d 687 (1962).

Duty to take appeal necessary to prevent injury to interests. The administrator represents the creditors and the whole of the estate, and it is his duty to take steps, such as appeal, as are necessary to prevent injury to the interests which he represents resulting from improper orders with respect to the estate of which he is representative. Gushurst v. Benham, 151 Colo. 159 , 376 P.2d 687 (1962).

A personal representative is required to preserve the real estate under this section. People v. Cooke, 150 Colo. 52 , 370 P.2d 896 (1962).

Prior to closing estate, personal representative collects rents. Normally in the course of administration of an estate a life tenant or other devisee is not given possession of realty until the estate is closed, meanwhile the representative of the estate collects the rents therefrom. Robinson v. Tubbs, 140 Colo. 471 , 344 P.2d 1080 (1959).

Power to bring actions to set aside colorable inter vivos transfers. The administrator of the transferor's estate is authorized and also has standing to bring actions to set aside colorable inter vivos transfers. In re Scavello v. Scott, 194 Colo. 64 , 570 P.2d 1 (1977).

He may maintain an action for the cancellation of irrigation district bonds, regardless of whether he has an interest in the real estate involved or not, it being his duty to receive, take possession of, sue for, recover and preserve the estate. Fowler v. Badger Irrigation Dist., 74 Colo. 109 , 219 P. 209 (1923).

Taxes are a proper administration expense. The taxes are a proper administration expense, and where their payment has been approved by the state court the taxes are not a claim against the decedent, since they accrued after his death. The payment is therefore necessarily approved as a part of the administration expense. Since the executor must pay them, he must be recouped. Such charges cannot be claims against the estate. He can only be recouped by allowing them as a part of the administration expenses, which they are. Brown v. Comm'r 74 F.2d 281 (10th Cir. 1934).

The estate is subject to taxation so long as the estate remains unsettled in the hands of the executor. A testator directed that after the payment of certain specific legacies and the expense of administration, the residue of his estate should be paid to an institution of learning, the properties which are exempt by law from taxation. So long as the estate remained unsettled the funds in the hands of the executors were subject to taxation under this section, and upon final settlement, the residue, if any, should be delivered to the regents. Davis v. Regents of the Univ. of Colo., 63 Colo. 506 , 168 P. 404 (1917).

The administrator may assume possession of real property pertaining to the estate of the decedent, and if withheld, may sue for and recover it. Galligan v. Hayden Realty Co., 62 Colo. 477 , 163 P. 295 (1917).

For the purpose of this section, a decedent-client's documents held by the client's attorney that have intrinsic value or directly affect valuable rights are the client's property. The rest of the legal files held by the attorney are the attorney's property. In re Estate of Rabin, 2020 CO 77, 474 P.3d 1211.

A personal representative does not acquire a right to take possession of a decedent's legal files under this section, except for documents having intrinsic value or directly affecting valuable rights, such as securities, negotiable instruments, deeds, and wills. In re Estate of Rabin, 2020 CO 77, 474 P.3d 1211.

Applied in Fry & Co. v. Dist. Court, 653 P.2d 1135 (Colo. 1982).