Estate of Kehmeier

24CA1075 Estate of Kehmeier 05-22-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1075
Delta County District Court No. 22PR5
Honorable Steven L. Schultz, Judge

In re the Estate of Fletcher Kehmeier, deceased.

Thomas Kehmeier,

Appellant,

v.

Mariel Kehmeier,

Appellee.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE FREYRE
Gomez and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 22, 2025

Belzer Law, Aaron B. Belzer, Ashlee N. Hoffmann, Boulder, Colorado, for
Appellant

Kelly and Fronapfel Law, PC, Jon L. Kelly, Christine M. Kelly, Zachary R.
Fronapfel, Dolores, Colorado, for Appellee
¶1 Thomas Kehmeier, as the personal representative of the estate

of his father, Fletcher Kehmeier, appeals the probate court’s order

finding that the Colorado family ranch must pass to him; his

brother, Steven Kehmeier; and the estate of his deceased brother,

Bill Kehmeier, as tenants in common. We reverse the order.

I. Background

¶2 Fletcher passed away on December 18, 2021, intestate.

Fletcher’s wife predeceased him. Fletcher was survived by three

sons — Steven, Thomas, and Bill.1 At the time of his death,

Fletcher’s estate contained real property located in Peachtree City,

Georgia,2 and a 1,200-acre ranch in Colorado.

¶3 During the probate proceedings, a dispute arose concerning a

January 2020 warranty deed purportedly executed by Fletcher and

recorded on March 28, 2022, that conveyed the family ranch to

Steven and his wife, Austynn Kehmeier, as joint tenants. At the

next status conference, Bill and Thomas advised the court they

1 The parties in this case all share the same last name so we refer to

them by their first name. We mean no disrespect.
2 This property is not in dispute, and the co-personal

representatives executed a deed conveying it to Bill on July 20,
2022.

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intended to dispute the warranty deed. The court then appointed

Thomas and Bill as co-personal representatives of Fletcher’s estate.

¶4 At the next status conference, Bill and Thomas continued to

dispute the validity of the deed transferring the family ranch to

Steven and Austynn. They asserted that Fletcher lacked the

capacity to convey the ranch in 2020 and believed he was subject to

undue influence. The probate court set the matter for trial.

¶5 Before trial, the brothers reached an agreement, and Steven

filed a written settlement agreement with the court. That

agreement provided:

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¶6 On June 14, 2022, the court reviewed the settlement

agreement with the brothers. It confirmed with each brother that

their settlement agreement said they would own the family ranch as

“tenants in common,” “co-owners,” or “co-tenants.” Steven then

asked whether tenancy in common was the same thing as joint

tenancy. The probate court responded:

No, they’re different. And so, let me just
explain some of that. I did review the
agreement that the three of you submitted.
That’s not something that THE COURT would
determine here as part of a probate
proceeding. If I recall correctly, I’ve appointed

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Bill and Thomas as the co-personal
representatives [(PRs)]. The two of you as the
PRs for the estate, would simply prepare a
beneficiary deed from the estate to the three of
you as co-tenants. You then become equal
co-owners of that property, each with an
undivided 1/3 interest. I did see there’s a
whole bunch of agreements as to what’s going
to happen with the property down the road.
And if somebody lives there, what they have to
pay for. None of that is something that the
probate court would typically sign off on. You
just become co-tenants going forward. And
then you can reach whatever agreement you
want to with respect to that property.

The other thing that the three of you need to
know is as co-tenants you each own an
undivided 1/3 of the property and any of the
three of you could essentially force a sale of
that property at any time.

....

The situation is that without any type of will,
the three of you take the Colorado property as
tenants-in-common. Because there is no [will],
you take it by [the] rules of intestate, because
there’s no will. All right. So, as the three
children of the decedent, you each get an equal
share.

The two ways to hold property in Colorado are
[as tenants] in common, or [as] joint tenants
with the right of survivorship. The default
position now is tenants in common. What that
means is that you each own a 1/3 undivided
interest of that property. If something were to
happen to one of the three of you, your

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undivided 1/3 interest would go to your heirs,
not to the other brothers. Okay.

....

That’s tenants in common. Joint tenancy with
the right of survivorship, would be a situation
where if something happened to you, that
person’s interest would go to the two survivors.
Because it’s an intestate transfer here it would
be a tenancy in common. I don’t know if the
three of you could agree among yourselves to
do a joint tenancy with a right of survivorship.
But that’s something you can talk about.

The other thing you need to understand is the
three of you become legal co-owners of the
property. That means that any one of the
three of you could require the property to be
sold, or divided among the three of you.

¶7 The probate court then asked the brothers how they wished to

transfer the ranch, and Bill replied that he thought that a tenancy

in common would be best. This colloquy followed:

THE COURT: All right. And that is the default
in Colorado. Steve, do you understand what
that means? So that —

STEVEN: So, if I die, my other two brothers
get —

THE COURT: No. If it’s joint tenants with the
right of survivorship —

BILL: No, no.

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THE COURT: — then your two brothers would
inherit your portion of the property.

STEVEN: Yeah, so if I die, my share goes to
them.

THE COURT: If it were joint tenants with the
right of survivorship. But it’s not.

STEVEN: Oh, oh.

THE COURT: It’s tenancy in common. Each of
you own a third of that property. If you were
to die, your third would pass to your heirs.
Your wife or your children. Same for Bill,
same for Thomas. All right.

I, normally, it is the purchasers that make the
determination whether it’s joint tenants with
the right of survivorship, or tenants in
common. The default under Colorado law is
tenancy in common now. I would think in a
probate proceeding where it is derived from an
estate, I would think it would be tenants in
common. I think if the three of you agreed
amongst yourselves you could convert it to a
joint tenancy with a right of survivorship, but I
don’t think I can require you to do that. Since
the default is tenancy in common.

(Emphasis added.)

¶8 Steven continued to ask questions about a tenancy in common

including how his interest in the ranch would pass, and ultimately,

the court found:

With respect to the ranch here in Colorado, my
understanding of the agreement is that the

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parties are essentially setting aside any deed
that was executed in favor of Steve and Austin
KEHMEIER and the estate will now transfer
the ranch property by way of a [personal
representative] deed from the two co-personal
representatives to the three siblings in equal
amounts as tenants in common. Bill, is that
your understanding?

¶9 Bill and Thomas confirmed this understanding, and Steven

asked what the next steps were. The probate court said that

Thomas and Bill would need to execute a personal representative’s

deed transferring the property from Fletcher’s Estate to the three

brothers.

In the probate court’s June 14 order, the probate court found:

The Court has previously appointed Bill and
Thomas Kehmeier as co-personal
representatives of the Estate . . . and
authorized them to serve without bond. The
Court hereby authorized the co-personal
representatives to transfer the Ranch
according to the rules of intestate success in
equal parts to the three heirs of the decedent,
Bill, Thomas and Steve Kehmeier. Unless the
parties agree otherwise, they shall hold the
property as tenants in common.

(Emphasis added.)

¶ 10 After the hearing, the three brothers orally agreed to hold the

ranch as joint tenants with the right of survivorship rather than as

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tenants in common. Additionally, they agreed that the

co-representatives would execute the deed for the Georgia property

first so that Bill could quickly sell it. Before the co-representatives

could execute the deed to the ranch, however, Bill unexpectedly

died while on vacation with his family in Argentina.

¶ 11 Mariel Kehmeier, as the personal representative of Bill’s estate,

asked the court to transfer title of the ranch to the surviving

brothers and Bill’s estate as tenants in common, pursuant to

C.R.C.P. 70. She argued that Bill’s unexpected death prevented the

parties from drafting a new deed for the property. The probate

court denied the request, stating, in part,

The Court notes that the sole remaining
personal representative of the FK Estate in
Colorado, which is his brother Thomas
Kehmeier, already has the authority to transfer
Estate assets to the heirs by any means that
he finds appropriate, including by way of a
[personal representative] deed. There is no
need for the Court to become involved unless a
dispute arises.

¶ 12 At a status conference, the probate court asked whether

Thomas, as the personal representative of Fletcher’s estate, would

be executing a personal representative’s deed in favor of himself,

Steven, and Bill’s estate. Thomas and Steven then informed the

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court of the oral agreement the three brothers reached before Bill’s

death to hold the ranch as joint tenants. Steven and Thomas also

informed the court that Bill did not want the ranch to transfer to

Mariel because they were going through a divorce. The probate

court responded:

Well, folks, the problem is a lot of this doesn’t
really matter because there is no deed that
puts the property in the name of the three
brothers in joint tenancy. And so the Court
issued an order requiring you to transfer the
property as tenants in common unless the
parties greed otherwise. You could have
determined — the three of you — to do a deed
back then, but you would have had to reduce
it down to writing and file it, and that did not
happen. And so I don’t think that you can
come into Court and retroactively tell me that
that was the agreement. It’s not binding
unless it’s in writing.

¶ 13 The probate court recommended that Thomas and Steven hire

legal counsel.

¶ 14 Counsel for Steven and Thomas filed a written brief arguing

that the brothers’ oral agreement to hold the ranch as joint tenants

and to execute the personal representative’s deed after the

Argentina trip should be honored. The probate court set the matter

for a trial.

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¶ 15 At trial, Thomas testified that when he entered into the

settlement agreement, he did not understand the difference between

a tenancy in common and joint tenancy. After the court explained

the differences at the June 14 hearing, he understood that the

brothers could decide among themselves how to hold the property.

After conducting his own research, Thomas concluded that he

wanted to hold title to the ranch as joint tenants with the right of

survivorship. Thomas testified that his understanding of the term

“heirs” in the settlement agreement referred to the three brothers

and that they would be the sole heirs to the ranch.

¶ 16 Steven similarly testified that his understanding of the term

“heirs” in the settlement agreement was the three brothers. Steven

clarified that because he and his brothers did not know the

difference between tenants in common and joint tenants at the time

they signed the settlement agreement, “this is the avenue we took

for a brother to gift or sign it over to another brother as an heir.”

Steven said that, after the court’s explanation at the June 14

hearing, he conducted his own research. He said the three brothers

spoke in July and decided to hold the property as joint tenants.

Steven said he wanted the ranch to stay with the brothers rather

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than passing to other individuals because “it’s a family farm that

had been in the family for over three generations, and our parents

are buried on the family farm, and we don’t want someone else

coming in and screwing that up.”

¶ 17 The court also heard testimony from Zachary Akin, Steven’s

son, who was close to his uncle Bill. During one of their

conversations, Bill said he felt strongly about the brothers keeping

the property and excluding both Austynn and Mariel from

ownership primarily because Bill had a strained relationship with

Mariel. Akin said Bill told him that the three brothers agreed to

own the ranch as joint tenants.

¶ 18 The probate court also heard from Austynn. Austynn testified

that during a conference call in July, the three brothers agreed to

hold the ranch as joint tenants.

¶ 19 Michael Phillips, a longtime friend of Steven and Bill, testified

that he spoke with Bill in July about the family ranch. Bill said

that he wanted to “keep it in the family between the three brothers

as long as possible.” Phillips said that Bill’s biggest concern was

that he did not want a third party to force the ranch to a sheriff’s

sale.

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¶ 20 In contrast, Mariel testified that Bill understood the difference

between tenants in common and joint tenants with the right of

survivorship and wanted the property to be titled as a tenancy in

common with his brothers. Mariel described Bill’s relationship with

Steven and Thomas as very estranged.

¶ 21 Mariel’s law school friend, Miguel Gonzalez, testified that Bill

was angry about the 2020 deed conveying the ranch to Steven and

Austynn and that he asked Gonzalez how he could prove it was

forged. Gonzalez also testified that, based on his conversations

with Bill, he believed that Bill understood the difference between

tenancy in common and joint tenancy before Fletcher’s death.

However, Bill never discussed how he wanted to structure the

transfer of the ranch.

¶ 22 Finally, James Stephan, Bill and Mariel’s neighbor, testified

that Bill and Mariel were living together at the time of Bill’s death

and that they were happily married. Again, Bill never discussed

how he wanted to structure the transfer of the ranch.

¶ 23 In a thorough written order, the court found:

• After the June 14 hearing, the three brothers reached an

oral agreement to hold the ranch as joint tenants with

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the right of survivorship. They decided to prioritize

keeping the property in the family over their individual

interests. The court found all testimony from Mariel and

her witnesses to the contrary not credible or biased.

• Despite the three brothers’ intent to hold the ranch as

joint tenants, the plain language of section 38-31-101(1),

C.R.S. 2024, required a written document as a

prerequisite to the establishment of a joint tenancy for

real property.

• Because the deed conveying the ranch to the brothers in

joint tenancy was not executed before Bill’s death, the

presumption of tenants in common applied to the

settlement agreement.

• The family ranch would pass to Thomas, Steven, and

Bill’s estate as tenants in common.

¶ 24 Thomas challenges the court’s order on two grounds. He first

contends that section 38-31-101(1), which applies to conveyances

and devises, does not apply here because the settlement agreement

neither conveyed nor devised the ranch. Second, he alternatively

contends that the oral agreement with his brothers is a separate

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contract that can be enforced through the execution of a deed in

joint tenancy. We agree the court erred and reverse the order.

II. Application of Section 38-31-101(1)

¶ 25 Thomas contends that the plain language of section

38-31-101(1) does not bar the enforcement of the brothers’ oral

agreement. Because the settlement agreement did not convey or

devise any real property, we agree.

A. Standard of Review and Applicable Law

¶ 26 We review the court’s statutory interpretation de novo.

Premier Bank v. Bd. of Cnty. Comm’rs, 214 P.3d 574, 577 (Colo.

App. 2009). Our primary objective “is to ascertain and effectuate

the General Assembly’s intent.” In re Estate of Arnold, 2024 COA

44, ¶ 10. To do that, we begin with the statute’s plain language,

giving that language its commonly accepted and understood

meaning. Id. If the statutory language is unambiguous, we apply it

as written. Id. We also review de novo the court’s application of the

statute to the facts of this case. See id. at ¶ 9.

¶ 27 Section 38-31-101, in pertinent part, states:

Except as otherwise provided in subsection (3)
of this section and in section 38-31-201,
[C.R.S. 2024,] no conveyance or devise of real

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property to two or more natural persons shall
create an estate in joint tenancy in real
property unless, in the instrument conveying
the real property or in the will devising the real
property, it is declared that the real property is
conveyed or devised in joint tenancy or to such
natural persons as joint tenants.

(Emphases added.)

¶ 28 A conveyance is a transfer of title to property by deed. Ford v.

Summertree Lane Ltd. Liab. Co., 56 P.3d 1206, 1208 (Colo. App.

2002); Platt v. Aspenwood Condo. Ass’n, 214 P.3d 1060, 1066 (Colo.

App. 2009) (a conveyance is a transfer of title to property bydeed);

Premier Bank, 214 P.3d at 577 (a conveyance is the transfer of title

to land from one person to another by delivery and acceptance of a

deed).

¶ 29 Devise, “when used as a noun, means a testamentary

disposition of real or personal property and, when used as a verb,

means to dispose of real or personal property by will.”

§ 15-10-201(12), C.R.S. 2024.

B. Analysis

¶ 30 We begin by noting that Fletcher died intestate and, thus, had

no will in which to “devise” the ranch. Further, the parties agree

that no document currently exists that transfers the ranch from

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Fletcher’s estate to the three brothers. Given the absence of a

conveyance or a devise, we conclude that section 38-31-101(1) does

not apply.

¶ 31 To the extent the probate court found that the settlement

agreement constituted a conveyance, we disagree. It contains no

legal description of the property, no transference language, and no

deed. See § 38-30-113, C.R.S. 2024 (providing the requirements

and form for a valid deed for the conveyance of real property).

Moreover, the purpose of the settlement agreement was to cease

litigation. Indeed, the court informed the brothers that they would

hold the property as tenants in common, unless they agreed

otherwise, which is precisely what occurred during the July

conference call where the brothers agreed to execute a personal

representative’s deed transferring the ranch to themselves as joint

tenants. Section 38-31-101(1) applies only to the actual

conveyance or devise, not to agreements to convey property in the

future.

¶ 32 Accordingly, we conclude that Thomas, as the personal

representative of Fletcher’s estate, can prepare a personal

16
representative’s deed effectuating the brothers’ oral agreement to

hold the ranch as joint tenants.

¶ 33 We are not persuaded otherwise by Mariel’s assertion that the

statute of frauds applies to the settlement agreement. Section

38-10-108, C.R.S. 2024, provides:

Every contract for the leasing for a longer
period than one year or for the sale of any
lands or any interest in lands is void unless
the contract or some note or memorandum
thereof expressing the consideration is in
writing and subscribed by the party by whom
the lease or sale is to be made.

¶ 34 While not defined by statute, a sale means “a contract between

parties to give and to pass rights of property for money which the

buyer pays or promises to pay the seller for the thing bought or

sold.” Wilson v. Frederick R. Ross Inv. Co., 180 P.2d 226, 230 (Colo.

1947) (citation omitted); see also Black’s Law Dictionary (12th ed.

2024) (defining a “sale” as “the transfer of property of title for a

price”). Because there was no payment or promise of payment, we

conclude the settlement agreement did not constitute a sale of any

land or any interest in land and, thus, that the statute of frauds

does not apply.

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¶ 35 We are also unpersuaded by Mariel’s argument that the oral

agreement was impossible to perform after Bill’s death.

Impossibility or impracticability of performance is a defense to a

breach of contract claim when “an unanticipated circumstance has

made performance of the promise vitally different from what should

reasonably have been within the contemplation of both parties

when they entered into the contract.” City of Littleton v. Emps. Fire

Ins. Co., 453 P.2d 810, 812 (Colo. 1969) (quoting 6 Samuel Williston

& George J. Thompson, A Treatise on the Law of Contracts § 1931

(rev. ed. 1938)). Because the personal representative has not yet

executed a deed for the property, the brothers’ oral agreement may

be enforced. Accordingly, we reject her argument and reverse the

probate court’s order.

III. Oral Agreement

¶ 36 Alternatively, we conclude that the brothers’ oral agreement

constituted a separately enforceable contract.

¶ 37 The existence of an oral contract is a question of fact, and this

court “will defer to a district court’s determination that a contract

exists if competent evidence in the record supports that finding.”

Tuscany Custom Homes, LLC v. Westover, 2020 COA 178, ¶ 52

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(citing Yaekle v. Andrews, 195 P.3d 1101, 1111 (Colo. 2008)); see

In re Marriage of Zander, 2021 CO 12, ¶ 1 (“[O]ral contracts are

enforceable under the law.”).

¶ 38 Here, the probate court found that the brothers reached an

oral agreement to hold the ranch as joint tenants with the right of

survivorship after the June 14 hearing and before any deed was

recorded. Accordingly, we will not disturb the probate court’s

finding.

¶ 39 Further, the oral agreement did not need to be in writing

because the statute of frauds does not apply. As previously

discussed, because the settlement agreement does not constitute a

sale of land or an interest in land, it is not subject to the statute of

frauds. The same reasoning applies here. The oral contract

reflected the brothers’ agreement concerning how to title the ranch

in the future personal representative’s deed and did not reflect a

current sale of land or interest in land. See § 38-10-108.

Therefore, we conclude that the brothers’ oral agreement

constitutes a separately enforceable contract.

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IV. Disposition

¶ 40 The order is reversed, and the case is remanded for execution

of a personal representative’s deed in joint tenancy with right of

survivorship.

JUDGE GOMEZ and JUDGE MEIRINK concur.

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