2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 12 - Probate of Wills and Administration
Part 8 - Creditors' Claims
§ 15-12-803. Limitations on Presentation of Claims

1. 1. All claims against a decedent's estate that arose before the death of the decedent, including claims of the state of Colorado and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statutes of limitations, are barred against the estate, the personal representative, any transferee or other person incurring liability under section 15-15-103, and the heirs and devisees of the decedent, unless presented as follows:
      1. As to creditors barred by publication, within the time set in the published notice to creditors;
      2. As to creditors barred by written notice, within the time set in the written notice;
      3. As to all creditors, within one year after the decedent's death.

   2. In addition to the limitations on presentation of claims in paragraph (a) of this subsection (1), claims barred by the nonclaim statute at the decedent's domicile are also barred in this state.

2. All claims against a decedent's estate that arise at or after the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, any transferee or other person incurring liability under section 15-15-103, and the heirs and devisees of the decedent, unless presented as follows:
   1. A claim based on a contract with the personal representative, within four months after performance by the personal representative is due;
   2. Any other claim, within four months after it arises.

3. Nothing in this section affects or prevents:
   1. Any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate;
   2. To the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance; or
   3. Collection of compensation for services rendered and reimbursement for expenses advanced by the personal representative or by the attorney or accountant for the personal representative of the estate.

4. This section is a nonclaim statute that cannot be waived or tolled, and it shall not be considered a statute of limitations.
5. Unless section 15-10-106 is determined to apply, and subject to the provisions of subsection (3) of this section, claims that are not presented in accordance with subsections (1) and (2) of this section are barred even if addressing the merits of the claim would not delay the settlement and distribution of the estate.

History. Source: L. 73: R&RE, p. 1592, § 1. C.R.S. 1963: § 153-3-803. L. 75: (3)(c) added, p. 598, § 34, effective July 1. L. 79: (1)(a) amended, p. 650, § 10, effective July 1. L. 90: (1) R&RE, p. 905, § 3, effective July 1. L. 2006: IP(1)(a) and IP (2) amended and (4) and (5) added, p. 373, § 2, effective July 1. History. Source: L. 73: R&RE, p. 1592, § 1. C.R.S. 1963: § 153-3-803. L. 75: (3)(c) added, p. 598, § 34, effective July 1. L. 79: (1)(a) amended, p. 650, § 10, effective July 1. L. 90: (1) R&RE, p. 905, § 3, effective July 1. L. 2006: IP(1)(a) and IP (2) amended and (4) and (5) added, p. 373, § 2, effective July 1.

Law reviews. For article, “The Inventory and Final Report”, see 27 Dicta 291 (1950). For article, “The Awkward Status of Colorado Real Property in a Decedent's Estate”, see 41 Den. L. Ctr. J. 129 (1964). For article, “Notice and Due Process in Probate Revisited”, see 14 Colo. Law. 29 (1985). For article, “Decedents' Creditors and Nonprobate Assets”, see 15 Colo. Law. 2190 (1986). For article, “Child Support Obligations After Death of the Supporting Parent”, see 16 Colo. Law. 790 (1987).

Annotator's note. Since § 15-12-803 is similar to repealed § 153-12-12, C.R.S. 1963, § 152-12-12, CRS 53, CSA, C. 176, § 207, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section. Annotator's note. Since § 15-12-803 is similar to repealed § 153-12-12, C.R.S. 1963, § 152-12-12, CRS 53, CSA, C. 176, § 207, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Subsection (3)(b) constitutional. The statutory classification of subsection (3)(b) between claims and estates protected by liability insurance and those that are not is reasonable and does not violate equal protection of the laws. In re Estate of Daigle, 634 P.2d 71 (Colo. 1981).

Subsection (1)(a), setting forth one-year period for bringing a claim against an estate, is not so limited as to amount to a denial of justice or due process. A statute of limitations does not deprive a claimant of its rights to due process unless the time for bringing the claim is so limited as to amount to a denial of justice. The general assembly is the primary judge of what amount of time is reasonable, and has determined that a one-year period is necessary to promote the speedy and efficient settlement of estates. In re Estate of Ongaro, 998 P.2d 1097 (Colo. 2000).

This section represents substantial change in Colorado law, not merely a codification of existing law and public policy. In re Estate of Wehling, 37 Colo. App. 276, 547 P.2d 1289 (1976), aff'd sub nom. Kropp v. Farmers Ins. Exch., 193 Colo. 144 , 563 P.2d 943 (1977).

The Colorado probate code cannot be deemed to indicate a legislative intent to eradicate all time limitations. In re Estate of Wehling, 37 Colo. App. 276, 547 P.2d 1289 (1976), aff'd sub nom. Kropp v. Farmers Ins. Exch., 193 Colo. 144 , 563 P.2d 943 (1977).

Purpose of a nonclaim statute is to impose a condition precedent, namely, filing notice within the time specified, to the enforcement of the right of action for the benefit of the party against whom the claim is made. It also serves to effectuate the substantive rights of the party against whom the claim is asserted, usually a governmental entity or a court officer. Barnhill v. Pub. Serv. Co., 649 P.2d 716 (Colo. App. 1982), aff'd, 690 P.2d 1248 (Colo. 1984).

Purpose of subsection (1)(a). In order to preserve the finality of distributions of the estate, subsection (1)(a) creates a jurisdictional bar to untimely claims. Strong Bros. Enters. v. Estate of Strong, 666 P.2d 1109 (Colo. App. 1983).

Nonclaim statute intended to expedite settlement of estate. The nonclaim statute providing for an absolute bar of a claim filed late is intended to expedite the orderly and exact settlement of estates of decedents. In re Estate of Randall v. Colo. State Hosp., 166 Colo. 1 , 441 P.2d 153 (1968); In re Estate of Dire, 851 P.2d 271 (Colo. App. 1993) (decided under this section as it existed prior to 1990 amendment); In re Estate of Ongaro, 998 P.2d 1097 (Colo. 2000).

Effect of a nonclaim statute is to bar substantive claims. Barnhill v. Pub. Serv. Co., 649 P.2d 716 (Colo. App. 1982), aff'd, 690 P.2d 1248 (Colo. 1984).

Nonclaim statute operates to deprive a court of jurisdiction. In re Estate of Plank, 32 Colo. App. 126, 509 P.2d 812 (1973), cert. dismissed, 186 Colo. 64 , 527 P.2d 548 (1974); In re Estate of Ongaro, 998 P.2d 1097 (Colo. 2000).

Nonclaim statute does not operate to deprive a court of jurisdiction, but instead bars the enforcement of late-filed claims against an estate. In re Estate of Ongaro, 998 P.2d 1097 (Colo. 2000).

But the bar created by this section is not an absolute bar. This section does not necessarily bar an untimely claim if addressing the merits of the claim would not delay settlement of the estate and distribution of assets. De Avila v. Estate of DeHerrera, 75 P.3d 1144 (Colo. App. 2003).

Nonclaim statute not applicable to equitable proceeding to redress breach of contract relating to will. Since an equitable proceeding to redress a breach of contract relating to a will is not in the nature of a demand which would reduce the size of the estate, such an action involves a dispute as to the ownership of the decedent's property and is not a claim against the estate. Thus, this nonclaims statute does not determine the time within which the action must be started. Knies v. Gross, 43 Colo. App. 127, 599 P.2d 976 (1979).

Disability trust is not subject to claims filing requirements of this section. Since department of health care policy and financing has a first priority right to all amounts remaining in the trust, the department is not required to file a claim against the estate. Stell v. Colo. Dept. of Health Care Policy & Fin., 78 P.3d 1142 (Colo. App. 2003), rev'd on other grounds, 92 P.3d 910 (Colo. 2004).

Subsection (2) creates jurisdictional bar to claim untimely filed on behalf of minor against a decedent's estate, except to the extent of the liability insurance exemption of subsection (3). In re Estate of Daigle, 634 P.2d 71 (Colo. 1981).

Nonclaim statute and statute of limitations distinguished. A nonclaim statute imposes a condition precedent to the enforcement of a right of action; the claim must be presented within the time set in the notice to creditors or be barred. A statute of limitations, on the other hand, does not bar the right of action but only the remedy. Such a statute, unlike a nonclaim statute, may be tolled. Such a statute is a defense which is waived if not affirmatively pleaded. In re Estate of Randall v. Colo. State Hosp., 166 Colo. 1 , 441 P.2d 153 (1968); In re Estate of Plank, 32 Colo. App. 126, 509 P.2d 812 (1973), cert. dismissed, 186 Colo. 64 , 527 P.2d 548 (1974); In re Estate of Daigle, 634 P.2d 71 (Colo. 1981); In re Estate of Hall, 936 P.2d 592 (Colo. App. 1996), aff'd, 948 P.2d 539 (Colo. 1997).

Nonclaim statute clearly not statute of limitations. While a nonclaim statute appears to be in the nature of a statute of limitations, it is clearly not such. In re Estate of Plank, 32 Colo. App. 126, 509 P.2d 812 (1973), cert. dismissed, 186 Colo. 64 , 527 P.2d 548 (1974).

Construing the nonclaim statute as a statute of limitations would frustrate the legislative purpose of promoting the speedy and efficient settlement of estates. In re Estate of Daigle, 634 P.2d 71 (Colo. 1981).

Nonclaim statute not subject to tolling provisions. The nonclaim statute is jurisdictional in character, and therefore not subject to the tolling provisions otherwise applicable to statutes of limitations. In re Estate of Daigle, 634 P.2d 71 (Colo. 1981); In re Estate of Ongaro, 973 P.2d 660 (Colo. App. 1998); In re Estate of Ongaro, 998 P.2d 1097 (Colo. 2000).

Unlike a statute of limitations, the deadline for filing claims established by this section generally cannot be waived or tolled, since the estate's personal representative is a trustee of the estate for the benefit of its creditors and heirs and as such cannot by his or her conduct waive any provision of the statute affecting their substantive rights, nor should the representative interfere with the orderly and exact settlement of the estates of decedents. In re Estate of Ongaro, 998 P.2d 1097 (Colo. 2000).

Purpose of section is to bar untimely claims, and time limitation for presenting claim is jurisdictional. Claim disallowed where presented more than three years after decedent's death. Matter of Estate of Musselman, 784 P.2d 858 (Colo. App. 1989).

Subsection (1)(a)(I) is not a self-executing statute. Russo v. Sunrise Healthcare Corp., 994 P.2d 491 (Colo. App. 1999).

Due process requires personal representative to give actual notice to known or reasonably ascertainable creditors of an estate. Russo v. Sunrise Healthcare Corp., 994 P.2d 491 (Colo. App. 1999).

A known or reasonably ascertainable creditor must present claims by the published deadline if the creditor has actual knowledge of the deadline. In re Estate of Sheridan, 117 P.3d 39 (Colo. App. 2004).

A will contest, or a dispute over the distribution of the estate, is not a claim against the estate as contemplated by this section. Therefore, this section does not apply. In re Estate of Haywood, 43 Colo. App. 127, 599 P.2d 976 (1979)(decided under law in effect prior to the 1990 repeal and reenactment); Murphy v. Glenn, 964 P.2d 581 (Colo. App. 1998).

This section and § 15-12-804 , in referring to claims “against the decedent's estate”, mean merely “payable out of the estate”. Heuschel v. Wagner, 73 Colo. 327 , 215 P. 476 (1923).

Illustrations of contingent claims. Decedent had signed as a guarantor on a note of which another person was the maker. State ex rel. Zimmerman v. Estate of Petzoldt, 126 Colo. 76 , 246 P.2d 909 (1952).

A lessor of premises, at the time of the death of his lessee, has a claim against the estate for the rental due under the terms of the lease executed by deceased. Lieber v. Sherman, 130 Colo. 216 , 274 P.2d 816 (1954).

Where a claim is not filed within the statutory period, the same is forever barred. Lieber v. Sherman, 130 Colo. 216 , 274 P.2d 816 (1954); Jackson v. Bates, 133 Colo. 248 , 293 P.2d 962 (1956); Koon v. Bartmettler, 134 Colo. 221 , 301 P.2d 713 (1956); Willis v. Neilson, 32 Colo. App. 129, 507 P.2d 1106 (1973).

The failure of a creditor to file a claim on its judgment within the four months required by § 15-12-801 bars it from asserting any claim based on the judgment. Park State Bank v. McLean, 660 P.2d 13 (Colo. App. 1982).

The claim of a reinstated corporation is not validated by reinstatement when the corporation was in suspension during the statutory period for filing. This section is a non-claim statute which provides an absolute bar to claims which are not timely filed. Alperstein v. Sherwood Int'l, Inc., 778 P.2d 279 (Colo. App. 1989).

Failure to file a timely claim constitutes a jurisdictional defect and can be raised for first time on appeal. Failure to file a claim against an estate prior to the date fixed in the notice of creditors as the last date for filing claims can be raised for the first time on appeal. In re Estate of Plank, 32 Colo. App. 126, 509 P.2d 812 (1973), cert. dismissed, 186 Colo. 64 , 527 P.2d 548 (1975).

If claim is filed within four months, the notice of application for allowance may be given after the four months. Where a claim is filed against a decedent's estate within four months from the granting of letters, it is immaterial that no notice to the executor of an application for its allowance is given, until the lapse of the four months. Metz v. People ex rel. Reid, 6 Colo. App. 57, 40 P. 51 (1895); Loveland's Estate v. Union Nat'l Bank, 25 Colo. 499 , 56 P. 61 (1898); Altvater v. First Nat'l Bank, 45 Colo. 528 , 103 P. 378 (1909); Milner Bank & Trust Co. v. Whipple's Estate, 61 Colo. 252 , 156 P. 1098 (1916).

Claims against estate seeking equitable remedies timely presented. Where a mutual mistake in the claimants' deeds was not discovered until the estate conveyed adjacent land to a third party and where claimants presented their claim for equitable relief from such mistake within four months from its discovery, the claim asserted by claimants was timely filed. Matter of Estate of Scott, 735 P.2d 924 (Colo. App. 1986).

Only a filing of claim within four months is necessary to arrest statute. Under the former act it was held that a claim was not exhibited until notice was given. That rule does not apply to this section in which filing only is necessary within four months to arrest the running of the statute. Brown's Estate v. Stair, 25 Colo. App. 140, 136 P. 1003 (1913).

Generally a personal representative cannot waive either the requirements or limitations of a statute of nonclaim. This rule is grounded upon the principle that the personal representative is a trustee of the estate for the benefit of its creditors and heirs, and as such cannot by his conduct waive any provision of a statute affecting their substantial rights. Crowley v. Farmers State Bank, 109 Colo. 146 , 123 P.2d 407 (1942).

The personal representative of an estate can neither waive nor toll a nonclaim statute. In re Estate of Plank, 32 Colo. App. 126, 509 P.2d 812 (1973), cert. dismissed, 186 Colo. 64 , 527 P.2d 548 (1975).

But personal representative cannot defeat rights of creditor by failing timely to allow or disallow claims. In re Estate of Hall, 936 P.2d 592 (Colo. App. 1996), aff'd, 948 P.2d 539 (Colo. 1997).

Statutes must be read together. A claimant who has presented a claim pursuant to § 15-12-804(1) rather than commencing a civil proceeding under § 15-12-804(2) has opted for consideration of the claim on its merits by the personal representative. If, thereafter, a claim initially deemed allowed is purportedly disallowed or not paid by the personal representative, the claimant is entitled to petition the court for allowance and payment of the claim under § 15-12-806 or § 15-12-807 , even though such petition is brought more than 60 days after the deadline for presenting a claim pursuant to this section. In re Estate of Hall, 936 P.2d 592 (Colo. App. 1996), aff'd, 948 P.2d 539 (Colo. 1997).

Renewal note by administratrix will not change character of original indebtedness. Renewal notes given by the administratrix of an estate for a debt existing at the time of the death of the decedent do not change the character of the original indebtedness, a claim not presented within the time prescribed and thus barred by this section. Haley v. Austin, 74 Colo. 571 , 223 P. 43 (1924).

If original debt is barred the mortgage securing the renewal note cannot be foreclosed. This debt, being barred by this section, insofar as the right to satisfaction out of the estate property not included in the chattel mortgage is concerned, it necessarily follows that the claimants were not entitled to a foreclosure of the mortgage securing the renewal notes. The note is the principal thing, the mortgage merely an incident. Haley v. Austin, 74 Colo. 571 , 223 P. 43 (1924).

Under prior law, claims of state hospital not barred by limitation or nonclaim statute. State ex rel. Zimmerman v. Estate of Petzoldt, 126 Colo. 76 , 246 P.2d 909 (1952); State v. Estate of Griffith, 130 Colo. 312 , 275 P.2d 945 (1954).

Likewise under prior law, state claim for income taxes not barred by limitation or nonclaim statute. Ray v. State, 123 Colo. 144 , 226 P.2d 804 (1950); State v. Barr, 159 Colo. 88 , 409 P.2d 832 (1966); In re Estate of Randall v. Colo. State Hosp., 166 Colo. 1 , 441 P.2d 153 (1968).

Insofar as claims are for care and maintenance, the weight of authority is that a sovereign or its subdivisions is subject to the same limitations for filing a claim as any other creditor who may make a claim against the estate of a decedent. In re Estate of Randall v. Colo. State Hosp., 166 Colo. 1 , 441 P.2d 153 (1968).

One who pays inheritance tax becomes creditor. When one voluntarily pays an inheritance tax, she becomes a creditor of the estate and must file her claim for reimbursement within the four-month period of subsection (2). Valks v. Krabacher, 639 P.2d 1086 (Colo. App. 1980).

Claim arising under workmen's compensation act is within section's purview. Since a claim arises at the time of the accident for purposes of the workmen's compensation act, it is a claim within the purview of this section notwithstanding the fact that a department of labor referee has not made a determination in a workmen's compensation proceeding concerning the claimant's eligibility for compensation nor an order entered pursuant to § 8-44-107 (3) . First Nat'l Bank v. Long, 44 Colo. App. 317, 616 P.2d 180 (1980).

Debt of decedent asserted against estate within section's time limitation is deductible. Under § 39-23-114 (1)(a)(I) any debt, except as qualified within that subparagraph, for which the decedent was personally liable, and which has been asserted against his estate within the time limitations of this section is deductible. State Inheritance & Gift Tax Div. v. Bugdanowitz, 44 Colo. App. 337, 614 P.2d 902 (1980).

Valid liens are not affected. This statute which bars the claims of unsecured creditors provides that valid liens of secured creditors are not affected and a secured creditor may disregard the estate and proceed against his security. In re Estate of Blanpied v. Robinson, 155 Colo. 133 , 393 P.2d 355 (1964); Willis v. Neilson, 32 Colo. App. 129, 507 P.2d 1106 (1973); Alberico v. Health Mgmt. Sys., Inc., 5 P.3d 967 (Colo. App. 2000); Oldham v. Pedrie, 2015 COA 95 , 411 P.3d 933.

Once a secured creditor presents an unconditional claim, without expressly reserving the right to enforce the security, and it is disallowed by an estate's personal representative, the creditor need not contest the disallowance in court within sixty-three days. If the secured creditor does not do so, the debt is not extinguished, and any lien securing the debt may be pursued in a foreclosure proceeding. Oldham v. Pedrie, 2015 COA 95 , 411 P.3d 933.

As holders of a valid lien, defendants were secured creditors and, thus, were not required to file a claim against plaintiff's mother's estate. Accordingly, non-claim statute does not bar defendants' claims. Alberico v. Health Mgmt. Sys., Inc., 5 P.3d 967 (Colo. App. 2000).

Although not filed within the four months, claims secured by mortgage or deed of trust may be allowed when the creditor relies solely upon the property covered by his lien and relinquishes all claim against the general assets of the estate. Reid v. Sullivan, 20 Colo. 498 , 39 P. 338 (1895); Sullivan v. Sheets, 22 Colo. 153 , 43 P. 1012 (1896).

In fact, the holder of an encumbrance upon property of the deceased may follow one of three routes: (1) He may ignore the estate entirely and look only to his security; (2) he may file a conditional claim so that he may share in any of the assets in the event there is a deficiency; or (3) he may ignore the security and look only to the assets of the estate. The failure to file a claim does not discharge the lien nor render it unenforceable. In re Estate of Blanpied v. Robinson, 155 Colo. 133 , 393 P.2d 355 (1964).

Subsection (3)(b) creates an exception to the time limitations of the probate code where the decedent is “protected by liability insurance”. Vigil v. Lewis Maintenance Serv., Inc., 38 Colo. App. 209, 554 P.2d 703 (1976).

The nonclaim statute, subsection (3)(b), bars an award of prejudgment interest and costs above the limit of a liability insurance policy when the action is filed after expiration of the statutory period for presentation of claims. White v. Estate of Soto-Lerma, 2018 COA 35 , 425 P.3d 1183.

Publication of notice which does not comply with § 15-12-801 is equivalent to no publication at all. In such a case, the general one-year period in former subsection (1)(b) of this section was held to apply. In re Estate of Dire, 851 P.2d 271 (Colo. App. 1993) (decided under this section as it existed prior to 1990 amendment).

Contingent legal malpractice claim arose when claimant knew or should have known that he might suffer damage due to decedent's conduct. When claim arose after the death of decedent attorney, contingent claim was barred if not filed within four months, even if still only a contingent claim. Poleson v. Wills, 998 P.2d 469 (Colo. App. 2000).

Failure to present a contingent claim should not bar a subsequent liquidated claim based on the same instrument when the obligation becomes fixed or ascertainable. Sec. Savings & Loan Ass'n v. Estate of Kite, 857 P.2d 430 (Colo. App. 1992), overruled in In re Estate of Hall, 948 P.2d 539 (Colo. 1997).

Claim of father for reimbursement of funeral expenses against decedent son's estate arose within the meaning of subsection (2) at the time the father paid the funeral expenses in November 1996, even though the funeral expenses were incurred by the decedent's brother in March 1994. Accordingly, the father's claim was not barred on the grounds that it was untimely filed, and the court properly asserted jurisdiction over the claim. In re Estate of Boyd, 972 P.2d 1075 (Colo. App. 1988).

A loan payment receipt did not present sufficient notice of a claim against the estate for compliance with this section. In re Estate of Ongaro, 973 P.2d 660 (Colo. App. 1998), aff'd, 998 P.2d 1097 (Colo. 2000).

Applied in Price v. Sommermeyer, 41 Colo. App. 147, 584 P.2d 1220 (1978); Wickham v. Wickham, 670 P.2d 452 (Colo. App. 1983).