{"id":147,"date":"2017-01-13T14:19:56","date_gmt":"2017-01-13T14:19:56","guid":{"rendered":"https:\/\/www.deeds.com\/articles\/?p=147"},"modified":"2024-04-25T23:21:09","modified_gmt":"2024-04-26T03:21:09","slug":"colorado-probate-devising-distributing-or-selling-a-decedents-real-property","status":"publish","type":"post","link":"https:\/\/www.deeds.com\/articles\/colorado-probate-devising-distributing-or-selling-a-decedents-real-property\/","title":{"rendered":"Colorado Probate: Devising, Distributing, or Selling a Decedent\u2019s Real Property"},"content":{"rendered":"\n

When acquiring real property, it is\nimportant to consider your plans for the property following your death, and\nmake estate planning decisions accordingly.<\/p>\n\n\n\n

Many factors determine what will happen\nto property in the event of an owner\u2019s death, including the type of property;\nthe way the owner holds title to the property; whether the decedent left a\nvalid will; and the laws of real property succession in the State of Colorado.<\/p>\n\n\n\n\n\n\n\n

Generally, when a property owner in\nColorado dies, his estate must go through probate. Probate is the court-overseen\nprocess by which a personal representative settles a decedent\u2019s affairs,\nincluding, among other things, collecting assets, paying debts, and distributing\nproperty that does not transfer outside of probate to a decedent\u2019s rightful\nheirs. <\/p>\n\n\n\n

The Colorado Probate Code (Title 15,\nArticles 10-17 of the Colorado Revised Statutes), adapted from the Uniform\nProbate Code, governs the probate process for all applicable assets a Colorado\nproperty owner leaves behind. Non-probate assets, or property that transfers\noutside of the probate process, include joint tenancy (survivorship tenancy) assets,\nassets held in trust, and assets transferrable by a recorded beneficiary deed.\nSmall estates probate is available for owners of personal property below a\ncertain dollar amount.<\/p>\n\n\n\n

After the decedent\u2019s death, petition to or\napplication for probate must be filed in the district court of the county where\nthe decedent resided at the time of death (if the decedent was not a Colorado\nresident, then in the Colorado county where the decedent owned property). The\npetitioner is generally the person designated as the personal representative by\nthe decedent\u2019s will, or the person with priority to serve when there is no will\nor no personal representative designation has been made in the will. Ancillary\nprobate may be required for additional real property interests held in Colorado,\nbut only if original probate is open and active in another state. <\/p>\n\n\n\n

To open probate proceedings in Colorado,\napply to the registrar for informal probate, or petition the court for formal\nprobate. Informal probate is typically chosen when the decedent\u2019s will is uncontested,\nor, if there is no will, there is agreement among heirs concerning who should\nbe appointed personal representative. In informal probate, the registrar\nappoints a nominee as the estate\u2019s personal representative (the nominee must\nhave priority of appointment). Consult a lawyer to assess your specific\nsituation and recommend the best plan of action. <\/p>\n\n\n\n

The court grants letters evidencing the\npersonal representative\u2019s appointment and authority. These are either letters\ntestamentary (when decedent dies testate, or with a will) or letters of\nadministration (when decedent dies intestate, or without a will). To distribute\nor sell real property on behalf of the estate, the personal representative uses\nhis or her letters of appointment. The letters also need to be on record in\norder to sufficiently pass title (see Colorado Title Standards 11.1.6, 11.1.8).\n<\/p>\n\n\n\n

There are multiple terms for transfers\nof property by a personal representative. The first is by devise, where the\ndevisee is a person designated by the decedent\u2019s will to receive property\n(C.R.S. \u00a7 15-10-201(13)). The second is by distribution, where a distributee is\na person receiving a decedent\u2019s property from a personal representative other\nthan as a creditor or purchaser (\u00a7 15-10-201(14)). In addition, personal\nrepresentatives may execute a deed of sale to a purchaser.<\/p>\n\n\n\n

To transfer title to real property to a\ndevisee or distributee, the personal representative executes a personal\nrepresentative\u2019s deed of distribution. To transfer title to a purchaser, the\npersonal representative executes a personal representative\u2019s deed of sale. Bear\nin mind that the powers of the personal representative may be limited by the\nletters regarding sale of real property, or that sale of real property may\nrequire an order from the court.<\/p>\n\n\n\n

Personal representative\u2019s deeds in Colorado\nare bargain and sale deeds (a statutory deed at \u00a7 38-30-115). A bargain and\nsale deed does not warrant against defects in the past chain of title, and is\ncommonly used by fiduciaries, or persons entrusted to hold assets for the benefit\nof another. The personal representative is a fiduciary of the estate because he\nrepresents or \u201cstands in\u201d for the decedent, and may have no knowledge of any\ntitle defects prior to his assuming fiduciary duties.<\/p>\n\n\n\n

The requirements of a personal representative\u2019s\ndeed are the same as any other document conveying an interest in real property,\nexcept that the personal representative\u2019s deed contains information regarding\nthe probate process, including the decedent\u2019s name and date of death, the court\nand county overseeing probate and the case number, and the personal\nrepresentative\u2019s name and date of appointment. Personal representative\u2019s deeds\nof sale are differentiated from personal representative\u2019s deeds of distribution\nin that they list a consideration paid for the transfer, with accompanying\ndocumentary tax stamps. Note that additional documentation may be required.<\/p>\n\n\n\n

Before recording, the personal representative must sign the deed in the presence of a notarial official. Deeds are submitted for recording in clerk\/recorder\u2019s office of the county where the subject property is located. Contact the county clerk\/recorder with any questions about recording.<\/p>\n\n\n\n

View Available Colorado Probate Documents:<\/p>\n\n\n\n