(3.5) A personal representative shall not be surcharged for distributions made that do not take into consideration the possible birth of a posthumously conceived child unless prior to such distribution:
Source: L. 73: R&RE, p. 1587, § 1. C.R.S. 1963: § 153-3-703. L. 75: (3) repealed, p. 606, § 62, effective July 1. L. 2010: (3.5) added, (SB 10-199), ch. 374, p. 1751, § 14, effective July 1. L. 2011: (3.5)(a) amended, (SB 11-083), ch. 101, p. 303, § 5, effective August 10. L. 2012: (5) added, (SB 12-131), ch. 114, p. 393, § 1, effective April 13. L. 2013: (6), (7), and (8) added, (SB 13-077), ch. 190, p. 767, § 3, effective August 7. L. 2018: (1) amended, (SB 18-180), ch. 169, p. 1193, § 12, effective January 1, 2019.
Cross references: For the duty of a personal representative to take possession of decedent's estate, see § 15-12-709.
COMMENT
This and the next section are especially important sections for they state the basic theory underlying the duties and powers of personal representatives. Whether or not a personal representative is supervised, this section applies to describe the relationship he bears to interested parties. If a supervised representative is appointed, or if supervision of a previously appointed personal representative is ordered, an additional obligation to the Court is created. See Section 3-501.
The fundamental responsibility is that of a trustee. Unlike many trustees, a personal representative's authority is derived from appointment by the public agency known as the Court. But, the Code also makes it clear that the personal representative, in spite of the source of his authority, is to proceed with the administration, settlement and distribution of the estate by use of statutory powers and in accordance with statutory directions. See Sections 3-107 and 3-704. Subsection (b) is particularly important, for it ties the question of personal liability for administrative or distributive acts to the question of whether the act was "authorized at the time". Thus, a personal representative may rely upon and be protected by a will which has been probated without adjudication or an order appointing him to administer which is issued in no-notice proceedings even though proceedings occurring later may change the assumption as to whether the decedent died testate or intestate. See Section 3-302 concerning the status of a will probated without notice and Section 3-102 concerning the ineffectiveness of an unprobated will. However, it does not follow from the fact that the personal representative distributed under authority that the distributees may not be liable to restore the property or values received if the assumption concerning testacy is later changed. See Sections 3-909 and 3-1004. Thus, a distribution may be "authorized at the time" within the meaning of this section, but be "improper" under the latter section.
Paragraph (c) is designed to reduce or eliminate differences in the amenability to suit of personal representatives appointed under this Code and under traditional assumptions. Also, the subsection states that so far as the law of the appointing forum is concerned, personal representatives are subject to suit in other jurisdictions. It, together with various provisions of Article IV, are designed to eliminate many of the present reasons for ancillary administrations.
1997 Technical Amendment. By technical amendment effective July 31, 1997, the final sentence of Section 3-703(b) was modified to clarify the originally intended meaning that a personal representative of a decedent's estate does not owe fiduciary duties to a person whose claim has not yet been allowed. This added language is not intended to affect any duty to give notice to prospective claimants under Section 3-801 or Tulsa Professional Collection Services v. Pope, 485 U.S. 478 (1988).
Structure Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 12 - Probate of Wills and Administration
Part 7 - Duties and Powers of Personal Representatives
§ 15-12-701. Time of Accrual of Duties and Powers
§ 15-12-702. Priority Among Different Letters
§ 15-12-704. Personal Representative to Proceed Without Court Order - Exception
§ 15-12-705. Duty of Personal Representative - Information to Heirs and Devisees
§ 15-12-706. Duty of Personal Representative - Inventory and Appraisement
§ 15-12-707. Employment of Appraisers
§ 15-12-708. Duty of Personal Representative - Supplementary Inventory
§ 15-12-709. Duty of Personal Representative - Possession of Estate
§ 15-12-710. Power to Avoid Transfers
§ 15-12-711. Powers of Personal Representatives - in General
§ 15-12-712. Improper Exercise of Power - Breach of Fiduciary Duty
§ 15-12-714. Persons Dealing With Personal Representative - Protection
§ 15-12-715. Transactions Authorized for Personal Representatives - Exceptions
§ 15-12-716. Powers and Duties of Successor Personal Representative
§ 15-12-717. Corepresentatives - When Joint Action Required