§ 15-12-412 — Formal testacy proceedings - effect of order - vacation

Colorado § 15-12-412

• Jurisdiction: Colorado
• Title 15: Probate,
• Art.: Probate of Wills and Administration

Text

(1)
Subject to appeal and subject to vacation as provided in this section and in section
15-12-413, a formal testacy order under sections 15-12-409 to 15-12-411, including
an order that the decedent left no valid will and determining heirs, is final as to all
persons with respect to all issues concerning the decedent's estate that the court
considered or might have considered incident to its rendition relevant to the
question of whether the decedent left a valid will, and to the determination of heirs;
except that:

(a) The court shall entertain a petition for modification or vacation of its
order and probate of another will of the decedent if it is shown that the proponents
of the later-offered will were unaware of its existence at the time of the earlier
proceeding or were unaware of the earlier proceeding and were given no notice
thereof, except by publication;

(b) If intestacy of all or part of the estate has been ordered, the
determination of heirs of the decedent may be reconsidered if it is shown that one
or more persons were omitted from the determination and it is also shown that the
persons were unaware of their relationship to the decedent, were unaware of his
death, or were given no notice of any proceeding concerning his estate, except by
publication;

(c) A petition for vacation under either paragraph (a) or (b) of this subsection
(1) must be filed prior to the earlier of the following time limits:

(I) If a personal representative has been appointed for the estate, the time of
entry of any order approving final distribution of the estate, or, if the estate is
closed by statement, six months after the filing of the closing statement;

(II) Whether or not a personal representative has been appointed for the
estate of the decedent, the time prescribed by section 15-12-108 when it is no
longer possible to initiate an original proceeding to probate a will of the decedent;

(III) Twelve months after the entry of the order sought to be vacated.

(d) The order originally rendered in the testacy proceeding may be modified
or vacated, if appropriate under the circumstances, by the order of probate of the
later-offered will or the order redetermining heirs;

(e) The finding of the fact of death is conclusive as to the alleged decedent
only if notice of the hearing on the petition in the formal testacy proceeding was
sent by registered or certified mail addressed to the alleged decedent at his last-known address and the court finds that a search under section 15-12-403 (2) was
made.

(2) If the alleged decedent is not dead, even if notice was sent and search
was made, he may recover estate assets in the hands of the personal
representative. In addition to any remedies available to the alleged decedent by
reason of any fraud or intentional wrongdoing, the alleged decedent may recover
any estate or its proceeds from distributees that is in their hands, or the value of
distributions received by them, to the extent that any recovery from distributees is
equitable in view of all of the circumstances. An action for recovery from
distributees not based on fraud or intentional wrongdoing shall not be brought by
the alleged decedent or any person claiming through him more than three years
from the date of such distribution. In no event shall any recovery be made by the
alleged decedent against any person who, in accordance with law and in good faith
and for adequate value, purchased or acquired a lien upon property of the alleged
decedent.

Legislative History

Source: L. 73: R&RE, p. 1577, � 1. C.R.S. 1963: � 153-3-412.