Where Art Jurisdiction?

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by C. Jean Stewart

Because Colorado is a "hybrid" state in that only one judicial district has a specialized probate court (a distinction we share with only Indiana and Missouri), confusion about jurisdiction can sometimes contribute to discussion and debate. I have collected here several articles and a case relating to jurisdiction to assist in understanding the subject. One is an article I wrote for The Colorado Lawyer in 2004 about how probate courts are identified around the state. Subsequently, I wrote an article for Council Notes more specifically directed to how cases are assigned and coordinated between the Denver District Court and Denver Probate Court. Finally, the Colorado Court of Appeals, in reversing me in the Estate of Edna Murphy, provided substantial helpful guidance to all probate courts in determining what subjects fall within the meaning of the Colorado Probate Code and are appropriate for designation as "probate" cases to be heard by Colorado district court judges "sitting in probate."

Practicing Law in Three States

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by Carol Warnick

I practice law in three Rocky Mountain states, Colorado, Utah and Wyoming.  As would be expected, there are significant differences among them, but also significant similarities.  It does provide a useful perspective with regard to the trends in estate, trust and fiduciary law — at least in the western United States.

We were living in Wyoming when my youngest of four children was ready to start school full-day, which was when I finally had the opportunity to go to law school.  Naturally, after graduating from law school, Wyoming was the first state in which I applied for admission to the bar and was admitted in 1990.  After successfully passing the Wyoming bar exam, I was surprised and pleased to be invited to apply for admission in Colorado.  Of course, I did so and waived into Colorado in 1992.  Interestingly enough, about 7 years after waiving into Colorado, we moved to Denver.  I kept some of my Wyoming clients and began building up a new practice in Colorado.  How convenient it was to already be admitted in Colorado!  I happily worked in both states, and for a while we even had a small Holland & Hart office in Casper, WY. 

After working at Holland & Hart LLP in Denver for several years, it became apparent that there was an unmet demand for an attorney with estate and gift planning expertise, as well as fiduciary litigation expertise, in our Salt Lake City Office.  The firm was willing to fly me back and forth to Salt Lake as needed to meet those needs.  I was pretty familiar with Utah since I had attended college there, so it seemed to make sense.  I actually had 3 children attending college there at the time I applied, and I was allowed to waive into Utah in 2004.  Now the stage was set.  I found myself with work in all three states and having to learn not only the differences in the law but also the variations in the accepted methods of doing things in all three states. 

As I mentioned, there are similarities and differences.  Both Colorado and Utah have adopted the Uniform Probate Code, but Wyoming has not.  Both Utah and Wyoming have adopted the Uniform Trust Code, but Colorado has not.  Colorado has had a beneficiary deed statute for several years, and the Wyoming legislature has just adopted one, but Utah does not have such a statute.  Of course, the specifics of these supposedly uniform laws as adopted by these states contain numerous variations. 

When going into court in a fiduciary litigation case, I have found the practices in the different states related to filing pleadings, getting courts to act, and what to expect at various court proceedings to be notably different from one another.  When I first started practice in Wyoming, I could simply walk over to the courthouse, visit with the judge about an uncontested matter, and get his signature on an order right then and there.  I’m not sure that can still be done, even in Wyoming, but it is certainly not an acceptable practice in Denver where we use the nonappearance docket for such uncontested matters, or in the Third District Court in Salt Lake City where the probate docket is heard every Wednesday morning.  Of course, there are significant variations in all three states between rural counties and the more populated ones.

It definitely keeps me on my toes to adapt to the setting I am in and go with the flow in the various jurisdictions in which I represent clients.  Thankfully, one constant is that there are honest and highly professional lawyers with which I have worked in each jurisdiction. 

I keep copies of the court rules and the probate and trust statutes for all three states in my office and I have learned not to rely on my memory.  I always look it up, whether it be a variation in a court rule or a difference in one of the provisions of a statute such as the probate code.  Even if I think I know, I don’t trust my memory to keep all the nuances straightened out and in the right state box in my mind.  

I have heard people say they like the practice of law because it is never the same — the issues are always new.  I agree wholeheartedly with that and when you add the complexity of practicing in three states, nothing about such a practice is boring!  My knowledge of the laws in the three states has also brought up some interesting issues for my clients who have ties to more than one of my states with regard to where to situs a trust and also possibly changing situs down the road after a trust has been established.   It is also an interesting analysis to look at where best to bring an action in those few cases where circumstances would allow them to be brought in a couple of states. 

I didn’t start out to be an attorney actively practicing in three states, it just worked out that way.  But I wouldn’t change anything about it. 

I’ll Be the Judge of That

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by C. Jean Stewart

I’ve been in San Antonio, Texas attending the Spring Conference of the National College of Probate Judges this week, catching up with old friends and learning about new trends and concerns among probate courts from Alabama to Oregon to Maine.  This has been an outstanding program in a very special setting.  Our thanks to Judge Mike Wood from Harris County Probate Court No. 2 (Houston) and Judge Ponda Caldwell from Spartanburg County Probate Court (Spartanburg, South Carolina) who assembled a group of outstanding judges and speakers to lead our conference. 

Probate judges and their probate court administrators continue to be restricted by severe budget cuts; nevertheless, we all share common concerns about probate court procedures in trust and estate litigation, abuse and financial exploitation of the vulnerable and elderly, and recent developments throughout the country in all areas of the law that impact probate cases.

Joanne Woodruff, Elder Fraud Prosecutor in the Bexar County District Attorney’s Office inspired and challenged us with the many accomplishments of her office in gaining convictions and significant sentences against con operators, opportunistic neighbors, greedy relatives, unscrupulous caregivers, and others bent on improperly taking funds from vulnerable elderly citizens.  Joanne’s position (her office includes an advocate assistant) has been made possible by a grant from the Texas governor’s office but her substantial track record (nearly 100% success) clearly arises from the passion and expertise she brings to her work.  Many judges expressed a desire to replicate programs like Joanne’s that would provide every community with a fearless and committed prosecutor to stem the tide of financial exploitation of the elderly.

Stanley Johanson, the James A. Elkins Chair in Law at the University of Texas School of Law, is one of our favorite lecturers in probate law and procedure.  He raised multiple issues of interest to probate judges under the new federal estate and gift tax laws and introduced multiple ways in which estate planning and changes to estate plans will impact probate judges in the years to come.  He even offered a little advice for probate judges thinking about their own estate plans. 

We were heartened to hear from several of our speakers that the Uniform Adult Guardianship and Protective Procedures Jurisdiction Act (UAGPPA) has now been adopted in 37 states (presently on the New York Governor’s desk for signature).  Perhaps no single uniform act has done more to insure the safety and security of vulnerable citizens in our mobile society by giving real legislative substance to the concept of “home state” and reducing the risks of conflicting court orders originating from multiple states than this uniform law created, in part, with the participation of NCPJ members.  The 13 states that have not adopted UAGPPJA will be the focus of the many groups committed to bringing an end to interstate support and involvement in disputes over physical control and custody of the incapacitated elderly.

No conference of probate judges is complete without a presentation on the special evidentiary rules – Dead Man’s statute e.g., that accompany probate court litigation.  Frank N. Ikard, Jr., a prominent Texas fiduciary litigator gave us his perspectives on many of these unique and complex rules.  Frank elaborated on the duties of a fiduciary to disclose complete, detailed records of the trust/estate account because (1) the records belong to the beneficiary who owns equitable title to the trust/estate account and (2) the fiduciary has an unquestioned duty to keep the beneficiary(ies) informed about the beneficiary’s property.  Frank refers to this as “equitable discovery” and lauds its virtues compared to the civil rules of discovery; most importantly, he has enjoyed great success in applying his analysis in his local practice in Texas.

At Friday evening’s spring banquet, NCPJ gave our annual Judge Isabella Horton Grant Guardianship Award to Erica Wood of the American Bar Association Commission on Law and Aging.  The Isabella Award was established to honor the memory of the late Judge Isabella Grant, for many years the highly respected and innovative presiding judge of the San Francisco Probate Court. The Award, sponsored by The Rutter Group of California and administered by NCPJ, recognizes and encourages achievements in the field of guardianships of minors and adults.  Erica Wood is particularly suited for this award because she has dedicated over 30 years to the improvement and adoption nationally of appropriate rules and procedures for guardianship proceedings involving our most vulnerable citizens. We congratulate and applaud Erica’s outstanding accomplishments.   

We leave San Antonio to return to many diverse states, inspired and confirmed in our views about the unique and particularly human aspects of probate jurisdiction and looking forward to meeting in Nashville for the fall conference in November (meet us at Sheraton Music City November 13-16) and then in Vail, Colorado next May at the Four Season’s Hotel (May 15-18).

Electronic Filing Tips

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by Ticia Sanderson, paralegal

ICCES is now Colorado’s electronic filing source in all but a few counties and our office has learned a few things about the system that might be helpful to other users.    First , if you are filing a document that needs the Court’s immediate attention be aware that just because you received confirmation from ICCES that the document was filed does not mean the Judge can see that you filed it.  Until the clerk accepts the document, which in our experience can take several days, the document is not listed in the register of the case and therefore not viewable by the Judge.  If you need the Judge to be aware that the document has been filed immediately, you should call the Clerk and request an expedited acceptance.   Additionally, when you receive an email notification that you are being served with a document it is also not visible to you in the register of the case listed on ICCES until the Clerk has accepted it for filing.  However, we have found the documents are normally viewable from the Alerts screen.