Monthly Archives: December 2013

December 23, 2013

What Do Probate Judges Do?

by C. Jean Stewart

Since I last posted an article on this blog, I was elected president of the National College of Probate Judges at its fall conference in Nashville, Tennessee. The College is the only national organization focusing exclusively on probate matters.  Its mission, to support, educate and provide resources to state and local judges who handle probate matters contributes to the efficient administration of justice in the probate courts in the United States.  Because I feel strongly about the role probate judges have historically played and continue to play in the fabric of the American court system, I embark on this role with both enthusiasm and resolve.

While the term “probate” historically referred only to the limited process of proving a testamentary document to be the decedent’s last will, probate has come to refer to a group of case types that include not only the administration of decedent’s estates, but also trust administration (a growing area), appointment of guardians and conservators (in some states the terms used are: guardian of the person and guardian of the property), disposition of last remains, declarations of death, civil mental health commitments and treatment of the mentally ill or addicted, and in some jurisdictions, the adoption of children. 

Some or all of the probate judges in 15 states are elected or selected to serve only in probate jurisdiction; in another 33 states judges of general jurisdiction have jurisdiction over probate cases, along with their civil and criminal dockets.  In 3 states, such as Colorado, there is a hybrid system where one or more localities have specialized judges while other areas rely on general jurisdiction judges for probate decisions.

Probate judges hear complex trials (including jury trials) arising from fiercely-contested cases, many of which are sensationalized and reported in the local or national press, such as the claim brought by Ryan O’Neal in the Farrah Fawcett estate litigation that was decided yesterday by a California jury.    Probate judges also hear many uncontested proceedings focused on the deteriorating physical and mental condition of injured, ill, and incapacitated citizens who rely on the courts to protect their rights while insuring that they receive appropriate care and support under the supervision of the probate court.  

The National College of Probate Judges plays an important role in assisting probate judges address these challenging and often emotionally-charged cases with educational seminars, publication of resources and materials (such as the National Probate Court Standards) and providing opportunities for collegial interactions with colleagues.  I look forward to working with judges around the United States during this coming year to assist with their important mission. 

December 9, 2013

Probate and Trust Issues in Colorado’s Upcoming Legislative Session

by Kelly Cooper

Colorado’s General Assembly will reconvene on January 8, 2014.  At this time, it appears that at least two probate and trust related issues will be the subject of debate by the Assembly.

The first is a proposed change to the Colorado Civil Unions Act that would permit partners to a civil union to file joint income tax returns if they are permitted to do so by federal law.  Under the current proposal being considered by the Colorado Bar Association, there would be changes to both the Civil Unions Act and Colorado’s income tax statutes.  This is partly in response to the issuance of Revenue Ruling 2013-17 by the Internal Revenue Service, which permits married same sex couples to file joint federal income tax returns. 

The second is a proposal to codify a testamentary exception to Colorado’s attorney-client privilege.  The necessity and proposed scope of the testamentary exception are currently being discussed by a subcommittee of the Statutory Revisions Committee of the Trust & Estate Section of the Colorado Bar Association and will likely be discussed later this week at Super Thursday meetings.

The Colorado Supreme Court has previously recognized that the attorney-client privilege generally survives the death of the client to further one of the policies of the attorney-client privilege – to encourage clients to communicate fully and frankly with counsel.  The Colorado Supreme Court has also held that a “testamentary exception” to the privilege exists, which permits an attorney to reveal certain types of communications when there is dispute among the heirs, devisees or other parties who claim by succession from a decedent so that the intent of the decedent can be upheld.