When someone dies owning Colorado real estate, a probate administration is necessary to transfer the property, either to a buyer or to the estate beneficiaries. If the property owner died while living out of state, the type of probate proceeding necessary to transfer the Colorado real estate depends on whether a probate administration has been opened in another state:
- If an original probate proceeding was opened in another state, then the process to transfer Colorado real estate is referred to as an “ancillary” probate administration.
- However, if no probate administration was opened in another state, an original Colorado probate administration may be used to transfer the property.
This article will focus on Colorado’s ancillary probate process. For details about original Colorado probate estate administrations, please refer to this article.
What is ancillary probate?
When a personal representative (“PR”) is appointed to administer a decedent’s probate estate, the PR’s authority to transfer real estate is typically limited to the state where the estate was opened. In order for a PR who was appointed in another state to have the authority to act with respect to Colorado real estate, the PR’s authority needs to be recognized by a Colorado court.
The process of recognizing the out-of-state PR’s authority to transfer Colorado property is referred to as an “ancillary” probate proceeding. The executor is referred to as a “domiciliary foreign personal representative” in Colorado once their authority is recognized by a court in this state.
What are the requirements for a Colorado ancillary probate?
First, an estate must be open and active in another state. The Personal Representative of the estate proceeding outside of Colorado may then apply to have his or her authority to act with respect to Colorado real property recognized by a court in this state. Two key points about this first step:
- Only the individual actually appointed as PR in an out-of-state probate administration may apply to act as PR in the ancillary Colorado proceeding, and
- The original estate administration must still be open at the time that the Colorado court is asked to recognize the foreign PR’s authority to act in Colorado.
Once the out-of-state probate is open, the PR must file certified, authenticated or exemplified copies of the original probate application and appointment documents with a Colorado court, together with a brief application in which the PR attests that the filed documents are true and correct. Typical application and appointment documents required from the original out-of-state probate proceeding include:
- The court order appointing the PR,
- Letters Testamentary or Letters of Administration issued by the court,
- Documentation as to any bond requirements of the PR,
- The decedent’s will (if one existed), and
- Any other documents issued by the foreign court which evidence or affect the PR’s authority to act for the estate.
Colorado courts typically require that the documents from the out-of-state court be certified, authenticated or exemplified within 60 days of being issued in order to open a Colorado ancillary probate proceeding. After filing the appropriate documents with a Colorado court, the court will issue a “Certificate of Ancillary Filing,” which grants the out-of-state PR the authority to act with respect to Colorado real estate owned by the decedent.
How is Colorado real estate transferred once the ancillary probate proceeding is filed?
Once the court issues the Certificate of Ancillary Filing, the foreign Personal Representative then has the legal authority to transfer Colorado real estate. The legal instrument used to convey the property from the probate estate – either to a buyer or to estate beneficiaries – is a Personal Representative’s Deed.
The Certificate of Ancillary Filing, including the Letters and/or Order issued by the out-of-state court that were filed with Colorado ancillary application, must be recorded prior to the Personal Representative’s Deed in order to demonstrate the PR’s authority to transfer the property. The Certificate of Ancillary Filing and supporting documents must then be recorded in each Colorado county in which real property needs to be transferred.
Our firm assists personal representatives through all facets of Colorado probate proceedings, including seeking appointment to act for Colorado real estate interests through ancillary probate administrations. We also work with Personal Representatives to prepare conveyance deeds or other instruments necessary to transfer Colorado real estate interests from estates upon successful appointment.
Please contact me if you need assistance with preparing a Colorado ancillary probate filing or any other component of a probate estate administration.
