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In re Estate of Colby.

2021 COA 31. No. 19CA1132.  Probate—CRS § 15-12-804—Presentation of Claims.

March 11, 2021


Colby died testate and was survived by her two daughters and several grandchildren. Her will provided that her primary residence, if not “claimed” by a family member, was to be sold and the proceeds evenly divided between her two daughters. The will named her granddaughter Johnson as executor.

Johnson applied for informal probate of the will and informal appointment as personal representative. Colby’s daughter Town testified that she sent Johnson an email saying she “wanted a fair share of the home.” Johnson testified that she didn’t recall the email, which was not admitted into evidence. Later, Johnson and Town’s attorney had a conversation in which Johnson was informed that Town would be satisfied with receiving half of the house’s value plus $10,000. Johnson did not consider any of these communications to be a “formal claim” for the home.

Shortly after informal probate was commenced, Johnson petitioned for formal probate. Johnson’s attorney then received a communication from Town claiming “half of what the house is worth,” which he passed along to Johnson, but again Johnson did not consider this to be a formal claim for half of the home’s value. Johnson was appointed as personal representative in the formal probate proceedings. Months later, Colby’s other daughter Smith (Johnson’s mother) delivered a written request to Johnson’s attorney for the residences. It is undisputed that this request was a claim for the residence. Johnson filed a petition for final settlement of Colby’s estate under which Smith would receive the residence and Town would receive two items of Colby’s personal property. Town objected but did not make a demand for the residence in any of her pleadings, which were dismissed for failure to prosecute.

Ultimately, the district court held that Town did not make a valid claim for the residence because her demand did not comply with CRS § 15-12-804. The court thus concluded that only Smith had validly claimed Colby’s home, and it granted the petition for final settlement of the estate.

On appeal, Town argued that she made a valid claim for the residence under the will’s terms. CRS § 15-12-804 applies only to a creditor’s claim against an estate; it does not apply to a devisee’s demand for a devise under a will. Town, as a member of Colby’s family who could claim the property, is a devisee of Colby’s primary residence and allegedly demanded the devise or a share of it. Here, the district court did not consider whether Town’s communications constituted a request for the residence. Therefore, the district court erred.

The order was reversed and the case was remanded for further proceedings consistent with this opinion.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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