Estate of Franchs, Matter of
| Decision Date | 23 January 1986 |
| Docket Number | No. 84CA1360,84CA1360 |
| Citation | 722 P.2d 422 |
| Parties | In the Matter of the ESTATE OF Martin FRANCHS, Deceased. Joyce FRANCHS, Appellant, v. Bruce BILLINGS, Special Administrator and Robert Broyles, Appellees. . II |
| Court | Colorado Court of Appeals |
Quigley, Palermo & Natchez, P.C., Christopher J. Maurer, Colorado Springs, for appellant.
No appearance for appellee Bruce Billings.
Garrett Sheldon, Walsenburg, for appellee Robert Broyles.
In this probate action, Joyce Franchs, the surviving spouse of the decedent, appeals from the trial court's order appointing Bruce Billings as special administrator of the decedent's estate. She contends that the trial court was required to appoint her as the personal representative of her husband's estate. We disagree, and therefore, we affirm.
Martin Franchs died intestate on September 21, 1983. Probate proceedings were commenced in June 1984, when Robert Broyles, an alleged creditor of the decedent's estate, filed a petition requesting to be formally appointed personal representative. Spouse subsequently petitioned for appointment as personal representative.
At the hearing regarding the appointment of a personal representative, creditor argued that spouse should be disqualified, while spouse argued that she had priority for the appointment by statute and should not be disqualified. After the hearing, the probate court found that appointment of a special administrator, as opposed to either of the parties, was necessary to determine the nature, extent, and title to decedent's estate. The court also found that creditor and spouse were intent only on resolution of creditor's claim, not the administration of the estate. Consequently, the court formally appointed a third party as the special administrator.
Creditor contends that this appeal should be dismissed because the appointment of the special administrator is not a final, appealable order. We disagree.
Under § 15-10-308, C.R.S., and C.A.R. 1(a), only final judgments of probate courts are reviewable on appeal. See In re Estate of Dodge, 685 P.2d 260 (Colo.App.1984). The Colorado Probate Code furnishes no guidance as to the types of probate court orders which may be deemed final for purposes of appeal. In re Estate of Dandrea, 40 Colo.App. 547, 577 P.2d 1112 (1978). However, it has been held that an order determining the issue of statutory authority or qualification of a party to be appointed as personal representative is deemed to be final and appealable. See Estate of Ove, 114 Colo. 286, 163 P.2d 651 (1945).
Here, since the probate court's order formally appointing the special administrator did not limit the special administrator's power, the special administrator has the power of a general personal representative. See § 15-12-617, C.R.S. Therefore, we hold that the probate court's order appointing the special administrator is final and appealable. See Estate of Ove, supra.
Spouse contends that the probate court's order appointing the special administrator was improper because the court was required to appoint her as personal representative. She argues that, since she has statutory priority for appointment as personal representative under § 15-12-203, C.R.S., and since the court made no finding of disqualification, the probate court's order appointing the special administrator improperly circumvented the mandatory provisions of the priority statute. We disagree.
Spouse's reliance on Estate of Webb, 90 Colo. 470, 10 P.2d 947 (1932) and Estate of Ove, supra, is misplaced. Those cases decided under a different statutory scheme did not address the question at issue here under the Colorado Probate Code as to the probate court's discretion in appointing a special administrator, as opposed to appointing a general personal representative in accordance with the statutory priority schedule.
While § 15-12-203, C.R.S., generally establishes the order of priority for appointment, as personal representative, of various classifications of persons who are not disqualified, § 15-12-203(8), C.R.S....
To continue reading
Request your trial
-
In re Estate of Scott, No. 03CA0631.
...cases determining that various probate court orders were final and thus subject to appellate review); In re Estate of Franchs, 722 P.2d 422 (Colo.App.1986)(order determining issue of statutory authority or qualification of a to be personal representative is final and appealable). Accordingl......
-
Abbott v. Sellon (In re Estate)
...Going , 62 Ark. App. 19, 966 S.W.2d 930 (1998) ; Estate of Keske , 33 Wis. 2d 64, 146 N.W.2d 450 (1966). But see Matter of Estate of Franchs , 722 P.2d 422 (Colo. App. 1986).34 Estate of Keske , supra note 33.35 In re Estate of Peters , 259 Neb. 154, 609 N.W.2d 23 (2000).36 See id.37 See id......
-
Estate of Binford v. Gibson
...Colorado Probate Code furnishes no guidance as to which probate court orders are deemed final for purposes of review, In re Estate of Franchs, 722 P.2d 422 (Colo.App.1986), this determination must be made on a case-by-case basis. See In re Estate of Peekus, 106 Mich.App. 268, 307 N.W.2d 469......
-
PART 2 VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO ADMINISTER; DEMAND FOR NOTICE
...notwithstanding this section's provisions governing priority of appointment of a personal representative. In re Estate of Franchs, 722 P.2d 422 (Colo. App. 1986). It is immaterial who presents the petition and facts as a result of which administration is granted. Rosenboom v. Cline, 90 Colo......
-
VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO ADMINISTER; DEMAND FOR NOTICE
...notwithstanding this section's provisions governing priority of appointment of a personal representative. In re Estate of Franchs, 722 P.2d 422 (Colo. App. 1986). It is immaterial who presents the petition and facts as a result of which administration is granted. Rosenboom v. Cline, 90 Colo......
-
PART 2 VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO ADMINISTER; DEMAND FOR NOTICE
...notwithstanding this section's provisions governing priority of appointment of a personal representative. In re Estate of Franchs, 722 P.2d 422 (Colo. App. 1986). It is immaterial who presents the petition and facts as a result of which administration is granted. Rosenboom v. Cline, 90 Colo......
-
PART 6 PERSONAL REPRESENTATIVE; APPOINTMENT, CONTROL, AND TERMINATION OF AUTHORITY
...15-12-615 notwithstanding the provisions in § 15-12-203 on priority of appointment of a personal representative. In re Estate of Franchs, 722 P.2d 422 (Colo. App. 1986). ■ 15-12-615. Special administrator - who may be appointed. (1) If a special administrator is to be appointed pending the ......