S.B. 94-43 Probate code - rewrite - evidence of death or status - intestate succession - elective share of surviving spouse - augmented estate - omitted spouse or children - exempt property and allowances - wills and will contracts - rules of construction for wills and other governing instruments - probate and nonprobate transfers - trusts for pets - powers of appointment - release and exercise by attorney-in-fact or agent. Repeals and reenacts certain portions of the "Colorado Probate Code" based substantially on recommendations of the National Conference of Commissioners on Uniform State Laws.
Identifies additional rules relating to the determination of death and status of an individual, including the following: That death occurs when an individual is determined dead under provisions relating to the practice of medicine; that, in the absence of prima facie evidence of death, the fact of death is to be established by clear and convincing evidence; and that the fact of death of an absentee is not to be determinative of any finding to be made in a formal testacy proceeding under the code. Reduces from 7 years to 5 years the length of time an individual whose death is not established must be absent in order to be presumed dead.
Defines the following additional terms: Agent, beneficiary designation, descendant, governing instrument, joint tenants with right of survivorship, payor, survive, and testator. Defines "descendant" to mean all of the individual's descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of parent and child contained in the probate code.
Permits a decedent, by will, to exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. Changes intestate succession provisions by allowing the surviving spouse to take the following amounts in the following circumstances: The entire intestate estate if all of the decedent's surviving descendants are also descendants of the surviving spouse and there are no other descendants of the surviving spouse; $200,000 of the intestate estate plus 3/4 of the balance if there are living parents of the decedent; $150,000 plus 1/2 of the balance if there are children who are descendants of both spouses and the surviving spouse has more than one surviving descendant who is not a descendant of the decedent; $100,000 plus 1/2 of the balance if there are adult children who are descendants of the deceased spouse, but not of the surviving spouse; and 1/2 of the intestate estate if one or more of the decedent's surviving descendants are not descendants of the decedent's surviving spouse, and if one or more of such descendants are minors.
For purposes of intestate succession, eliminates the consideration of the descendants' degree of kinship to the decedent and provides that shares passing to descendants pass by representation. Allows a birth child or a birth parent to file a claim for inheritance within 90 days of the decedent's death and provides that, if there is no other surviving heir identified, the intestate estate is to pass to such surviving birth child or birth parent. Treats an adopted individual as the child of the adopting parents and not the child of the birth parents for purposes of intestate succession, unless the birth child or the birth parent files such a claim. Establishes the burden of proof for determining whether an individual survived an event as "clear and convincing" evidence.
Establishes a different representation system for heirs to provide equal shares to those equally related. Requires each generation to take on the basis of the share the previous generation would have received, if it had survived. Creates a per-capita-at-each-generation system of representation.
Modifies the elective-share and augmented estate provisions. Bases the amount of a surviving spouse's percentage share of the augmented estate on the length of such spouse's marriage to the decedent up to a maximum of 50% of the augmented estate. In certain circumstances, entitles the surviving spouse to a supplemental elective-share amount payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others. Requires the net assets of the surviving spouse to be taken into account in calculating the augmented estate. Identifies property which is excluded from the augmented estate. Identifies and prioritizes the sources from which the unsatisfied balance of the elective-share amount is to be satisfied. Changes the time limitations within which a petition for the elective-share must be filed and delivered to 9 months after the date of the decedent's death or 6 months after the decedent's will is admitted to probate, whichever is later.
Changes the means by which the share of an unintentionally omitted spouse or child is determined. For purposes of exempt property and family allowances, sets forth special provisions on behalf of surviving spouses who are incapacitated and who exercise the right to any elective-share.
Concerning wills and will contracts, specifies the burden of proof and type of evidence by which a document may be established as the testator's will. Permits the establishment by extrinsic evidence of the testator's intent that a document constitute a will even if portions of the document are not in the testator's handwriting. Creates a rebuttable presumption that a subsequent will is intended to replace rather than supplement a prior will if it makes a complete disposition of the testator's estate and creates a rebuttable presumption that a subsequent will is intended to supplement rather than replace a prior will if it does not make a complete disposition of the testator's estate. Treats any provision in a will purporting to penalize an interested person from contesting the will as unenforceable if probable cause exists for instituting such proceedings.
Sets forth rules of construction for wills, codicils, and other governing instruments executed, republished, or reaffirmed on or after July 1, 1995. Permits wills to provide for the passage of property acquired by the estate after the testator's death. Creates the presumption of a substitute gift in certain circumstances, which presumption may be superseded by an alternative beneficiary designation. Determines which substitute gift is to take effect if more than one is created. Requires clear and convincing evidence that an individual survived an event by 120 hours. Creates exceptions to the 120-hour survival rule in the following circumstances: If the imposition of a 120-hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity or if the application of a 120-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition. Provides protection for payors and bona fide purchasers. For purposes of class gifts created by wills and other governing instruments, treats relationships in accordance with the provisions of intestate succession. Makes a future interest created under the terms of a trust contingent upon the beneficiary's surviving the distribution date and specifies the result if the beneficiary does not so survive. Establishes a presumption that the distribution of class gifts in favor of "descendants", "issue", or "heirs of the body", if not otherwise specified, be distributed among the class members who are living when the interest is to take effect in possession or enjoyment in such shares as class members would take under intestate succession. Interprets the terms "by representation", "per capita at each generation", and "per stirpes". Abolishes the doctrine of worthier-title as a rule of law and as a rule of construction. Authorizes the disclaimer of an interest in property and sets forth rules governing the time within which a disclaimer must be filed or delivered and the form of the disclaimer. Explains the effect of a disclaimer.
Specifies the effect of a felonious killing upon the right of the killer to inherit either by will or intestate succession by expanding those rights forfeited by such an individual who feloniously kills the decedent. Revokes any disposition, appointment of property, or nomination as representative or fiduciary made by the decedent in the name of the killer. Provides protection for payors and bona fide purchasers. Treats a court order or a contract relating to the division of the marital estate between divorced individuals before or after a marriage, divorce, or annulment as a revocation of any revocable disposition or appointment of property made by a divorced individual to his or her former spouse or any provision conferring a general or nongeneral power or appointment on the divorced individual's former spouse.
Validates trusts for the care of designated domestic or pet animals and the animals' offspring in gestation. Subjects such honorary trusts and trusts for pets to certain provisions.
Authorizes the attorney-in-fact or agent acting under a power of attorney on behalf of a donee of a power of appointment to release such power or to exercise such power.
Applies to estates, wills, or governing instruments of decedents dying on or after July 1, 1995.
APPROVED by Governor April 28, 1994
EFFECTIVE July 1, 1995
S.B. 94-142 Medical treatment decisions - CPR directives. Modifies the statutes governing patient autonomy in regard to the making of medical treatment decisions to: Allow a parent or legal guardian of a minor child to execute a CPR directive only after a physician issues a "do not resuscitate" order for the minor child; specify that compliance with an advance medical directive, including a CPR directive, a medical durable power of attorney, or a living will, shall not be considered as manslaughter under the "Colorado Criminal Code"; and specify that only CPR directives executed by a guardian, agent, or proxy decision-maker may be revoked by a guardian, agent, or proxy decision-maker.
APPROVED by Governor May 4, 1994
EFFECTIVE May 4, 1994
H.B. 94-1216 Probate code - construction of marital deduction formula in will - closing of estates. Differentiates between the construction of any marital deduction formula that refers generally to federal and state tax credits and any marital deduction formula that refers specifically to federal and state tax credits. Allows a personal representative to file a verified statement to close an estate one year after the date of death if the one-year anniversary date occurs sooner than 6 months after the personal representative's appointment.
APPROVED by Governor April 20, 1994
EFFECTIVE April 20, 1994
H.B. 94-1228 Agency - agency instrument - content - form. Specifies the provisions that a principal may include in an agency instrument. Clarifies that the statutory provisions govern every agency instrument unless the agency instrument conflicts with the statutory provisions, in which case the instrument controls. Establishes a minimum age of 18 years for a person acting as principal and 21 years for a person acting as agent. Specifies that an agency continues through the incapacity of the principal until the death of the principal, unless otherwise stated in the agency instrument. Authorizes a principal to amend or revoke an agency, but provides that, until the agent has notice of such amendment or revocation, an agent is not liable for acts that are no longer authorized due to such revocation or amendment. Authorizes any agent to resign from an agency. Specifies that if the principal's spouse is appointed as agent and the principal and spouse are later separated or divorced, the spouse is deemed to have died for purposes of the agency. Establishes the duties of an agent to the principal.
Protects any third party who relies in good faith on an agency instrument in any dealings with the agent. Authorizes any third party who deals with an agent to demand an affidavit stating the validity of the agency. Specifies the presumptions regarding the validity of the agency that a third party may make. Requires any person who receives a direction from an agent to act on such direction. Authorizes any person who questions the validity of an agency to bring an interpleader action. Allows any third party to request proof of agency.
Requires an agent to take into account and enforce the principal's estate plan in acting under the agency. Specifies that an agent may not act with regard to a trust unless the trust is specifically referred to in the agency instrument. Grants an agent access to the principal's personal papers as necessary to carry out the agency.
Authorizes the court to order a guardian or conservator to act for the principal under the agency if the court finds the principal lacks capacity to act and the agent is not acting in the principal's best interests. Authorizes a court to construe an agency instrument if the court finds the instrument requires construction; except that the court may not amend the agency instrument. Specifies the venue for an interested person to bring an action for enforcement of the agency instrument. Requires the agent to work with the principal's guardian or conservator if one has been appointed. Empowers a principal's guardian or conservator to revoke, suspend, or terminate the agency instrument if the principal is incapacitated, except with respect to medical treatment decisions.
Establishes the statutory agent's affidavit regarding power of attorney form.
Modifies the statutory power of attorney for property form to provide notice to the principal of the extent of the agent's powers and to allow the principal to specify the agent's powers more precisely.
APPROVED by Governor May 4, 1994
EFFECTIVE January 1, 1995
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