Determination of Heirs Proceedings: Clearing Title in a Decedent’s Unadministered Property

When someone dies, their probate assets are typically distributed through a probate proceeding. However, if a probate proceeding is never commenced, or if certain assets are not distributed through probate, those assets remain titled in the name of the decedent. In order for the decedent's beneficiaries to convey good title in the unadministered assets to a third party, ownership must first be transferred to the beneficiaries. One way to accomplish such a transfer is through a Determination of Heirs proceeding, an alternative to probate in Colorado through which ownership of real property is transferred to a decedent's beneficiaries.

Consider the following scenario: A husband and wife owned real property in Colorado as tenants in common. "Real property" in this context could, for instance, mean a home, commercial building, vacant land, or mineral, oil, or gas interests. The owners died out of state a number of years ago, but no probate proceedings were ever opened in Colorado or their state of residence, so their interests in the property were never administered. The owners were survived by two children, the beneficiaries of their respective estates via the laws of intestate succession. The children now want to sell the property to a third party purchaser, but record title is still held in the name of their parents.

A common solution to clear title in the name of the children in such a scenario is to open two probate proceedings: one for the mother to convey her half interest in the property; another for the father to convey his half interest. However, each probate proceeding requires its own pleadings, filing fees, and appointment of a personal representative, a role which carries with it a number of related responsibilities. The Determination of Heirs proceeding, however, is a way to legally transfer title to the children without having to comply with all of the requirements of probate.

Mechanics of the Proceeding

When someone dies leaving an interest in real property in Colorado, or dies domiciled in Colorado leaving an interest in personal property in any state, any person claiming an interest in the property may petition the court to determine the heirs of the decedent and the descent of the property at issue. The proceeding is available to determine either the descent of intestate property or the devisees of the decedent under a will and the related succession of testate property.

The threshold qualifications that must be met for a Determination of Heirs proceeding include: (1) one year must have passed since the decedent's date of death; and (2) the decedent's estate has either not been administered, or if it was administered, some portion of the decedent's property was not settled. The petition of the person who brings the action must affirm that these threshold qualifications have been met and must identify a number of pieces of required information about the decedent and parties having an interest in the property at issue.

Upon filing the petition, the court will set a time and date for a hearing. Notice of the filing of the petition must be served on any persons having an interest in the property. Interested persons must answer and file any objections to the petition in writing, within time periods set forth by statute based on how notice of the proceeding was served. Notice may be served in person, by mail, or by publication in a local newspaper. The scope of the hearing is limited to objections filed by the parties who answered the petition in a timely manner.

The court will determine: (1) the standing of the petitioner to bring the action; (2) the heirs and devisees of the decedent; (3) the owners by inheritance of the property; (4) a description of the property; and (5) any other pertinent facts. The court will then enter judgment on the petition. If there are no objections or answers filed to the petition, the court may enter a decree without a hearing. A decree entered pursuant to a Determination of Heirs proceeding is conclusive as to the rights of heirs or devisees in the property described in the order.

After the Order

Once the order is issued by the court, it must be recorded in the county's real property records to put other parties on notice of the new owners. Because the Determination of Heirs proceeding is used relatively infrequently in Colorado, personal experience suggests that the petitioner or petitioner's attorney should follow up with the court and county assessor's office to be certain that the transfer of ownership has indeed been formally recognized and recorded. Once transfer of record title has been recorded, the beneficiary should obtain a title insurance policy from a title company to insure clear title, so the interest can ultimately be conveyed to a third party purchaser. Again, experience suggests that the title company and county assessor's office may need to be educated about the mechanics and effect of this proceeding.

Conclusion

A Determination of Heirs proceeding may be a viable alternative to probate in certain situations where a decedent's unadministered property needs to be conveyed to the decedent's beneficiaries after a considerable amount of time has passed since the decedent's death. While the procedure foregoes some of the flexibility, discretion, and benefits afforded to a personal representative in a probate administration, the process can efficiently and effectively serve to convey property to the decedent's beneficiaries at a lower cost and with fewer administrative compliance requirements.

If you are the beneficiary of property that is still titled in the name of a decedent and which needs to be re-titled in your name, a Determination of Heirs proceeding may be a way for you to vest title in yourself without incurring many of the expenses and compliance requirements of probate. Please contact our office for more details.

Michael A. Smeenk is an attorney in the law firm of Frascona, Joiner, Goodman and Greenstein, P.C., a Colorado law firm.  His practice areas include Estate Planning, Trust and Estate Administration, Real Estate, and Corporations. He can be reached at contact Michael Smeenk.

Disclaimer -- Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.