Estate Of Everhart: The Right To Formal Probate In Colorado

The Colorado Court of Appeal adds clarifies the responses available to formal probate petitions. What impact does this have for practitioners opening proceedings?

Formal and Informal Probate

How does an executor choose between informal or formal proceedings? When deciding on whether to pursue informal or formal probate, attorneys and executors have mainly focused on one issue: the possibility of litigation. Proposed executors initiate the informal probate process when there is a valid will or a clear intestacy with a qualified personal representative ready to be appointed. Traditionally, the applicant expects no contests. In contrast, a proposed executor opens formal probate when a will is predicted to be contested, is unclear or invalid, or if there are other significant challenges in administration, such as an issue identifying heirs, or property title disputes.

Typically, the proposed executor uses the formal probate when they suspect an heir might contest the will’s validity or contents. Even if no such contestation materializes, executors and the beneficiaries can rest easier knowing that the order of probate is final to all who have received notice by service and can not be contested. In contrast, informal probate can still be contested within 12 months of the probate or three years from the decedent’s death. Chapter 15, Section 401 provides guidance on the creation of formal testacy proceedings:

“(1) A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing a petition as described in section 15-12-402(1) in which he requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application […]

(2) A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. […]

(4) Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding.”

Once proceedings are opened, section 15-12-403(1)(a) states:

 “Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing”. 

With these provisions, one might assume that an interested party may open formal testacy proceedings at any time, force the court to schedule a formal probate hearing, and pause the informally-appointed executor’s distributions. With this possibility, a prudent executor would always opt for the formal probate process when there is even a slight possibility of litigation. Otherwise, they risk wasting time, cost, and court resources when their informally-opened administration is suspended and the will is re-probated by the court. Even the possibility of a vexatious family member spurned by their measly inheritance would prompt a personal representative to open formal probate as a precaution. A 2014 case provides guidance on this issue.

Re Everhart: Motion to Dismiss and the Right to a Formal Probate Hearing

In re Est. of Everhart, 2021 COA 63 challenges this position. The Colorado Court of Appeal discussed whether beneficiaries contesting a will are automatically entitled to a hearing under Section 15-12-401. This case reverses the assumption that any interested person has the right to a formal hearing concerning the validity of the will. The decedent executed her will in December 2009 and devised her estate to her three brothers, two nieces, and nephew. The will named her brother Christopher as the executor. The two other brothers, Jack and Richard Everhart (the Objectors), alleged that the will was invalid due to a lack of testamentary capacity and undue influence exerted by Christopher. They filed a petition objecting to the informal probate and seeking formal probate proceedings. While Christopher filed an answer to the petition, a niece and nephew filed a motion to dismiss the petition under Rules of Civil Procedure 12(b)(5) due to the lack of a plausible claim. The move to dismiss was successful. The lower court accepted that the petition failed to specify factual allegations and state a plausible claim. The Objectors’ document merely hinted at the possibility of undue influence and Everhart’s lack of testamentary capacity. 

The Objectors appealed the decision to dismiss the case. They alleged that the Probate Code grants interested parties the right to a formal probate hearing not subject to a motion to dismiss. The Objectors asked the Court of Appeal to confirm their right to an evidentiary hearing on their petition’s allegations. They believed that the court was statutorily required to “fix a time and place of hearing” on every petition. Alternatively, they claimed the lower court erred in determining their petition failed to state a plausible claim for relief.

The Court of Appeal analyzed the structure of the Probate Code. Section 15-10-304 states that the Rules of Civil Procedure apply to formal probate proceedings unless inconsistent with a statutory provision. If the legislature wanted to make a clear deviation from the rule allowing petitions to be dismissed, they would have made it more explicit and inconsistent. Secondly, if the Rules of Civil Procedure could entitle judges to dismiss 15-12-401(1) petitions due to lack of jurisdiction or through summary judgment, they should be able to do so for lack of specified allegations. Finally, the Probate Code has the purpose of “promot[ing] a speedy and efficient system for settling the estate of the decedent and making distribution to successors”. Dismissing meritless claims early only serves this purpose. 

The Court of Appeal assessed the argument that early dismissal is inappropriate for probate cases due to the inaccessibility of information to state a claim. They found the appellants’ argument legally baseless. Litigants have no right to discovery in order to use garnered information to formulate a claim. The Objectors’ petition must include a valid and plausible claim to gain the right to a hearing and discovery. The Court found that dismissing the petition for formal probate under Rule 12(b)(5) was a valid legal decision.

Claims of Undue Influence and Lack of Testamentary Capacity

Secondly, the Court of Appeal found that the lower court was correct to find that the petition’s claims failed to state a plausible claim for relief. The petition should have raised a right to relief above the speculative level; not doing so opens the petition to being dismissed. In this case, the Objectors failed to provide any backing to their claims of undue influence or a lack of testamentary capacity. 

The Objectors claimed that Christopher’s fiduciary relationship with Everhart at the time of the will’s execution demonstrated his undue influence on her. Their petition contended that the decedent relied heavily on Christopher in making financial decisions, primarily because he was the trustee for her irrevocable trust and oversaw the funds that provided her assistance. The Court of Appeal confirmed that a fiduciary relationship does not create the presumption of undue influence. The objectors failed to allege that Christopher was actively involved in preparing or executing the will. Nowhere in the petition did they state that Christopher overrode or deprived Everhart of her free will. 

The Petition also claimed that the decedent engaged in self-destructive behaviors of substance abuse and changed the family tradition regarding the distribution of real property. The Court found that these allegations were insufficient to raise doubts on the decedent’s testamentary capacity. The claims were mere speculation. The petitioners did not claim that the decedent was suffering from addiction when the will was drafted or executed. Nor was any link provided for how a lack of testamentary capacity explained the deviation from the family practice of distribution.  Their statements failed to meet the plausibility requirement on this front as well.

Takeaways for Wills and Estates Practitioners

Re Everhart Estate demonstrates that it is not always preferable to open a formal proceeding preemptively. The Court of Appeal reinforced the Probate Code’s subservience to the Rules of Civil Procedure, including the dismissal of meritless petitions and the possibility for summary judgments. The onus lies on applicants to prove why they deserve a formal probate hearing. Colorado probate law does not provide an automatic right to one.

Furthermore, the court affirmed that simply having the status as a fiduciary does not give rise to a claim of undue influence. An interested party seeking the formal probate of a will must allege precisely how the testator was unduly influenced. Similarly, simply stating that someone had battled addiction at different times is not sufficient to allege a lack of testamentary capacity. Vague accusations on these grounds do not warrant a trial, and when the basic standards of plausibility are not met, judges are within their powers to dismiss petitions for formal probate proceedings. An interested party may not petition the court for formal probate of the will when they are dissatisfied with it, hoping to uncover a claim at the hearing. 

What does this mean for executors and probate attorneys? If the executor and their attorney are confident that the decedent had correctly executed the will or estate plan, they may elect to open the probate informally despite the risk of litigation. This choice can lower their probate costs. If a claim materializes, they can rely on motions to dismiss and summary judgments to rebut the petitions. The high bar of showing undue influence or a lack of testamentary capacity makes courts more likely to dismiss meritless will challenges. In an overzealously litigious legal landscape, the Court of Appeal in Re Everhart reasserted the importance of rejecting implausible will contests early. 

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