Colorado probate law – executor conflict of interest

Posted by: Feb 03, 2016By Brian Stutheit

 Colorado probate law

refers to an executor as the “personal representative” of the estate.  The personal representative is generally entitled to get involved in probate dispute litigation, and to bill the estate for his or her litigation expenses.  However, a personal representative may be replaced by an independent “special administrator” to the extent the court directs, where the personal representative has a conflict of interest.  The fact that a personal representative also claims a right to inherit from the estate is not presumed to create a conflict of interest.  As the law says, being a successor to the estate assets is not, “in and of itself” a conflict of interest. However, being a successor to the estate may be a factor showing a conflict of interest.
A personal representative has duties of fairness in estate administration which are absolute.  Failure to meet one’s duties can be evidence of a conflict of interest.  This might include breach of the following duties:  prepare an inventory of estate assets; give information of one’s appointment as personal representative to heirs and devisees.  In simple terms, an heir is someone in the natural line of inheritance.  A devisee is someone named to inherit in the last will.  Other evidence of a conflict of interest might include not preparing an accounting, not telling a surviving spouse of his or her rights against the estate, and over billing the estate for the personal representative’s time.

We have successfully argued in probate litigation that a personal representative who also claims to be a creditor of an estate, such as someone to claims she is owed by the estate for time spent looking after the decedent, has a conflict of interest.