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Rule Change 2021(14)

Colorado Rules of Probate Procedure and Colorado Probate Code Forms. Rules 40 and 57. Forms 813, 822, 824, 825, 826, 827, 828, 829, 830, 834, 835, 843, 850, 877, 882, 885, 897, 910, 913, 914, 916, 919, 920, 921, 922, 924, 926, 940, 990, and 991.

June 17, 2021


Rule 40. Discovery and Disclosures

(a) This rule establishes the provisions and structure for discovery and disclosures in all proceedings seeking relief under Title 15, C.R.S. Nothing in this rule will alter the court’s authority and ability to direct proportional limitations on discovery or to impose a case management structure or enter other discovery orders. Upon appropriate motion or sua sponte, the court may apply the Colorado Rules of Civil Procedure in whole or in part, may fashion discovery and disclosure rules applicable to specific proceedings, and may apply different discovery and disclosure rules to different parts of the proceeding.

(b) Unless otherwise ordered by the court or stipulated by the parties, the expert disclosure provisions of C.R.C.P. 26(a)(2)(A) and 26(a)(2)(B) apply to proceedings seeking relief under Title 15, C.R.S. The timing of expert disclosures shall be established by order of the court or stipulation of the parties. The disclosure requirements of C.R.C.P. 26(a)(1) do not apply to probate proceedings unless ordered by the court or stipulated by the parties.

(c) Unless otherwise ordered by the court, the parties may engage in the discovery provided by C.R.C.P. 27 through 36. Any discovery conducted in Title 15 proceedings prior to the issuance of a case management or other discovery order will be subject to C.R.C.P. 26(a)(4) and (5), and 26(b) through (g). However, due to the unique, expedited and often exigent circumstances in which probate proceedings take place, C.R.C.P. 16, 16.1, and 16.2 do not apply to probate proceedings unless ordered by the court or stipulated to by the parties.

(d) C.R.C.P. 37, 45, and 121 § 1-12 are applicable to proceedings under Title 15.

(e) Notwithstanding subsections (a) through (c) of this rule, subpoenas and discovery propounded to a respondent in proceedings under Title 15, Article 14, Part 3, must not be permitted without leave of court, or until a petition for appointment of a guardian has been granted under § 15-14-311, C.R.S. The limits in this subsection do not apply to subpoenas or discovery propounded to a respondent’s agent under medical or financial powers of attorney.

(f) Notwithstanding subsections (a) through (c) of this rule, subpoenas and discovery propounded to a respondent in proceedings under Title 15, Article 14, Part 4, are prohibited without leave of court, or until a petition for appointment of a conservator has been granted under §15-14-409, C.R.S. The limits in this subsection do not apply to subpoenas or discovery propounded to a respondent’s agent under medical or financial powers of attorney.

Rule 57. Electronic Wills

When an electronic will, as defined by § 15-12-1502(3), C.R.S., is tendered to the court for deposit, lodging or probate, these rules control.

(a) Courts may not accept or receive an electronic will by external media or by any method that requires access to a judicial device pursuant to Chief Justice Directive (CJD) 07-01.

(b) Electronic wills submitted for deposit or lodging with the court must be converted by the proponent to a paper copy and certified as set forth in § 15-12-1509, C.R.S.

(c) Courts are only authorized to accept electronic wills for deposit or lodging that have been converted to a paper copy and are accompanied by a certification as set forth in § 15-12- 1509, C.R.S.

(d) When an electronic will is presented for probate in paper form, it must be submitted with a certification as set forth in § 15-12-1509, C.R.S. When multiple wills have been deposited, lodged, or filed with the court, the court must determine whether probate should proceed formally.

(e) Court staff, in their official capacity, may not notarize or witness an electronic will.

(f) Court staff, in their official capacity, may not create a paper copy of an electronic will for certification as an original as set forth in § 15-12-1509, C.R.S.

(g) Court staff, in their official capacity, may certify as a part of the court’s record, a paper copy of the electronic will lodged with the court, together with its certification as set forth in § 15-12-1509, C.R.S., as described above in (b).

(h) Court staff, in their official capacity, may certify as a part of the court’s record, a paper copy of the electronic will submitted to the court for probate, together with its certification as set forth in § 15-12-1509, C.R.S., as described above in (d).

(i) Court staff, in their official capacity, may certify as part of the court’s record, an electronic will submitted to the court for probate via the Colorado Court’s E-filing (CCE) system.

COMMENTS

2021

[1] For limits regarding remote notarization, see § 24-21-514.5(2)(b)(II), C.R.S.

[2] When C.R.P.P. 91 and C.R.P.P. 92 are active due to a public health crisis having been declared by the Governor of Colorado, this Rule 57 governing electronic wills controls – supersedes both C.R.P.P. 91 and C.R.P.P. 92.

Amended and Adopted by the Court, En Banc, June 17, 2021, effective June 21, 2021. 

By the Court:

Richard L. Gabriel

Justice, Colorado Supreme Court

Official Colorado Supreme Court Rules Committees proceedings can be found at the Colorado Supreme Court Rules Committees website.

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