of Colby

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
March 11, 2021

2021COA31

No. 19CA1132, Estate of Colby — Probate — Creditors’ Claims
— Manner of Presentation of Claims

In this probate proceeding, the decedent’s will provides that

her primary residence, if not “claimed” by a family member, is to be

sold and the proceeds evenly distributed to her two daughters. The

appellant, one of the decedent’s daughters, contended that she

made a valid claim for the residence under the terms of the will.

The district court disagreed because the appellant’s demand did not

comply with section 15-12-804, C.R.S. 2020.

A division of the court of appeals concludes that the district

court erred because section 15-12-804 applies only to a creditor’s

claim against an estate and does not apply to a devisee’s demand

for a devise under a will. Accordingly, the division reverses the
district court’s order approving the final settlement of the

decedent’s estate and remands for further proceedings.
COLORADO COURT OF APPEALS 2021COA31

Court of Appeals No. 19CA1132
Teller County District Court No. 18PR5
Honorable Scott Sells, Judge

In re the Estate of Carol Ann Colby, deceased.

Kathryn Gail Town-Statham,

Appellant,

v.

Kellie Marie Johnson, in her fiduciary capacity as Personal Representative,

Appellee.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE NAVARRO
J. Jones and Yun, JJ., concur

Announced March 11, 2021

The Law Office of Loren Randall & Associates LLC, Loren Randall, Denver,
Colorado, for Appellant

The Blattner Law Firm LLC, Lisa T. C. Blattner, Colorado Springs, Colorado, for
Appellee
¶1 Appellant, Kathryn Gail Town-Statham, challenges the district

court’s order approving the final settlement of decedent Carol Ann

Colby’s estate. Town1 is Colby’s daughter. Colby’s will provides

that her primary residence, if not “claimed” by a family member, is

to be sold and the proceeds evenly distributed to her two daughters.

The district court decided that Town did not make a valid claim for

the residence because her demand did not comply with section 15-

12-804, C.R.S. 2020. We conclude that the court erred. As a

matter of first impression, we hold that section 15-12-804 applies

only to a creditor’s claim against an estate and does not apply to a

devisee’s demand for a devise under a will. Accordingly, we reverse

and remand for further proceedings.

I. Facts and Procedural History

¶2 The following evidence was presented to the district court.

¶3 Colby died on January 18, 2018, and was survived by her two

daughters (Town and Lisa Smith) and several grandchildren. Colby

left a valid will naming her granddaughter, Kellie Marie Johnson, as

“executor.” Colby’s will (the Will) devises specific personal property

1With one exception, appellant uses only “Town” as her surname in
her opening brief. So we will do the same.

1
to her children and grandchildren. The Will devises her primary

residence somewhat differently. With respect to the residence, the

Will provides as follows:

VI. ADDITIONAL POWERS OF THE
EXECUTOR . . . .

My executor will have the power and authority
to pay all debts in my name and pertaining to
my home . . . , to pay all medical bills, to sell
my home . . . (if not claimed by family).

My home . . . , remaining assets, personal
items and any property that are not claimed by
children and grandchildren are to be sold by
the Executor Kellie Johnson[;] she is to evenly
distribute the remaining monies after financial
obligations have been met with debts, funeral
costs, selling fees and other financial
obligations in my name to my daughters
Kathryn Town-Statham and Lisa Smith if they
survive me out right and free of trust.

(Emphasis added.)

¶4 On February 12, 2018, Johnson applied for informal probate

of the Will and informal appointment as personal representative.

She also distributed copies of the Will to Town, Smith, and others.

¶5 Town later testified that, on February 27, 2018, she sent

Johnson an email saying that she “wanted a fair share of the

home.” But Johnson testified that she could not recall Town’s

2
claiming a share of the home’s value in that email. The email itself

was not admitted into evidence, and the district court did not make

a finding as to its contents. Sometime after this email, Johnson

and Town’s attorney had a conversation in which Johnson was

apparently informed that Town would be satisfied with receiving

half of the house’s value plus an additional $10,000. Town also

requested an appraisal of the residence. Johnson, however, did not

consider any of those communications to be a “formal claim” for the

home.

¶6 In March 2018, Johnson petitioned for formal probate of the

Will and formal appointment as personal representative. She

retained counsel. Shortly thereafter, Johnson’s attorney received a

communication from Town claiming “half of what the house is

worth.” Johnson’s attorney passed along this message to Johnson,

but again Johnson did not consider it to be a “formal claim” for half

of the home’s value.

¶7 In July 2018, Johnson was appointed as personal

representative. At some point between August and November 2018,

Smith (Johnson’s mother) delivered a written request for the

3
residence to Johnson’s attorney. No one disputes that Smith’s

request was a claim for the residence.

¶8 On November 27, 2018, Johnson filed a petition for final

settlement of Colby’s estate. According to the petition, Smith would

receive the residence, and Town would receive two items of Colby’s

personal property. In February 2019, Town filed an objection to the

will and inventory. Additionally, Town filed three motions to set

aside the Will and probate the estate under the laws of intestacy.

Town did not make a demand for Colby’s residence in any of those

motions. Those motions were denied for Town’s failure to

prosecute.

¶9 The district court set a hearing on Town’s February 2019

objection. After receiving the evidence discussed above, the court

consulted section 15-12-804, which governs claims by creditors of

an estate. The court concluded that Town had failed to comply with

section 15-12-804 because she presented her “purported claim” for

Colby’s residence (or a share of it) to Johnson in February 2018,

which was before Johnson had been appointed as personal

representative. The court also decided that Town had not complied

with the Will’s terms, but the only reason the court gave for this

4
decision was Town’s failure to make a “valid claim” under the

statute. The court thus concluded that only Smith had validly

claimed Colby’s home.

¶ 10 The court thereafter granted Johnson’s petition for final

settlement of Colby’s estate.

II. The District Court Erred by Applying
the Creditor Claims Provisions

¶ 11 We agree with Town that the district court erred by applying

section 15-12-804 to her alleged claim for Colby’s residence

because that provision does not apply to distributions to

beneficiaries under a will.2

A. Standard of Review and Pertinent Principles

¶ 12 We review de novo the district court’s legal conclusions,

including its interpretation of the probate statutes and the Will.

See Sandstead-Corona v. Sandstead, 2018 CO 26, ¶ 38; Oldham v.

Pedrie, 2015 COA 95, ¶¶ 9-10.

2 We say Town’s “alleged claim” because, as we will explain, we
must remand this case to the district court to determine the precise
contents of the communications between the parties and their
attorneys, as well as whether those communications constituted a
“claim” under the Will.

5
¶ 13 Our task in construing a statute is to ascertain and give effect

to the intent of the General Assembly. People v. Dinkel, 2013 COA

19, ¶ 6. In determining legislative intent, our review begins with the

statute’s plain language. Id. at ¶ 7. We look to the statutory design

as a whole, giving effect to the language of each provision and

harmonizing apparent conflicts where possible. Id. In doing so, we

read statutory words and phrases in context and construe them

according to their common usage. Id. If the statute is clear and

unambiguous, we need not engage in further analysis. Id.

¶ 14 This case requires us to consider sections of the Colorado

Probate Code, §§ 15-10-101 to 15-17-103, C.R.S. 2020, which must

be construed liberally to promote a speedy and efficient system for

settling a decedent’s estate and making distribution to their

successors. § 15-10-102(2)(c), C.R.S. 2020; Oldham, ¶ 10. Because

the Colorado Probate Code is adapted from the Uniform Probate

Code (UPC), we can also consider the decisions of courts from other

jurisdictions that have adopted the UPC. § 15-10-102(1)-(2)(e)

(“This code shall be . . . applied . . . [t]o make uniform the law

among various jurisdictions.”); § 15-16-928, C.R.S. 2020; cf. People

in Interest of G.C.M.M., 2020 COA 152, ¶ 26 (“[W]e look to guidance

6
provided by other states because, if a statute has been adopted

from a uniform law, it should be construed to bring uniformity to

the law in the various states that adopt it.”).

¶ 15 Part 8 of Article 12 of Title 15 is titled “Creditors’ Claims” and

includes section 15-12-803, C.R.S. 2020. That section is a

“nonclaim statute” and sets forth time limits for “creditors” to

present “claims” against a decedent’s estate. § 15-12-803. Claims

that are not timely presented are barred against, among others, the

estate, the personal representative, and “the heirs and devisees of

the decedent.” § 15-12-803(1)(a), (2).

¶ 16 Section 15-12-804 lays out the manner of presentation of

claims. As relevant here, a claim may be presented by delivering a

written statement of the claim to the court-appointed personal

representative. § 15-12-804(1)(b). If this method is selected, a

claim is not validly presented unless delivered after the personal

representative has been appointed. § 15-12-804(2). The personal

representative’s knowledge that a creditor could bring a claim is not

a valid substitute for proper presentment of a written claim.

§ 15-12-804(3). A claim must contain a request or demand for

payment and provide sufficient information to allow the personal

7
representative to investigate and respond to the claim.

§ 15-12-804(4).

¶ 17 With some exceptions not relevant here, “‘[c]laims’” in this

context “includes liabilities of the decedent . . . whether arising in

contract, in tort, or otherwise, and liabilities of the estate which

arise at or after the death of the decedent . . . including funeral

expenses and expenses of administration.” § 15-10-201(8), C.R.S.

2020. “Creditor” is not defined, but it is clear that the “UPC

equates the term ‘creditor’ with one who holds a claim against the

estate.” Martel v. Stafford, 603 A.2d 345, 348 (Vt. 1991).

B. Preservation

¶ 18 To reiterate, Town contends that the district court erred by

applying the statutory provisions related to a creditor’s claim

against an estate because they are inapplicable to her purported

demands for Colby’s residence. Johnson says that Town did not

preserve this claim because Town asked the court to interpret those

statutory provisions broadly and to apply them here.

¶ 19 At the hearing, Town’s counsel explained that the “Probate

Code gives the deadline for creditors to file” but “we’re not talking

about a creditor claim in this case.” He argued that, in the context

8
of the Will, “claims should be interpreted more broadly than just the

Probate Code.” Counsel noted that the Will does not outline a

format or a deadline for a beneficiary to claim property under the

Will, and counsel asked the court to interpret the Will broadly to

effect Colby’s wishes. In particular, counsel asked the court to

interpret the Will to permit a beneficiary’s claim made “even

pre-appointment of the personal representative” because “[i]t

doesn’t say, ‘once someone is appointed that they can make a

claim.’” Town’s counsel argued that Town made a claim for the

house to the person named in the Will as the estate’s executor and

who was later appointed as personal representative (Johnson).

¶ 20 Based on the above, we conclude that Town adequately

preserved her contention that the statutory provisions related to a

creditor’s claim against an estate are inapplicable to her purported

demands for Colby’s residence. Rather than asking the district

court to apply those provisions, Town asked the court to interpret

the Will as permitting the informal procedure by which she allegedly

claimed the house.

9
C. Section 15-12-804 Does Not Apply Here

¶ 21 We conclude that the district court erred by applying section

15-12-804 because Town did not present a claim against the estate.

Instead, in her role as a beneficiary and devisee, she ostensibly

made a demand for a devise under the Will.

¶ 22 “Beneficiary” as it relates to a beneficiary designated in a

“governing instrument” includes a “devisee”; “[g]overning

instrument” includes a will. § 15-10-201(5), (22). “Devisee” means

“a person designated in a will to receive a devise.” § 15-10-201(13).

“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).

“Property” means “both real and personal property or any interest

therein and anything that may be the subject of ownership.”

§ 15-10-201(42).

¶ 23 Under these definitions, Town, as a member of Colby’s family

who could claim the property, is a devisee of Colby’s primary

residence and allegedly demanded the devise or a share of it. Cf.

Laymon v. Minn. Premier Props., LLC, 913 N.W.2d 449, 454 (Minn.

2018) (Nothing in the statute “suggests that devisees of residuary

10
property are treated any differently from specific or general

devisees.”) (footnote omitted). That is, Town did not assert a claim

as envisioned by the nonclaim statutes, including section

15-12-804.

¶ 24 As courts in other UPC states have recognized,

non-claim statutes apply only to claims
against the estate of a decedent which, if
allowed, would reduce the corpus of the estate
or the amount of property which would
otherwise be subject to division or distribution
among the heirs of an intestate decedent or the
legatees and devisees of a testate decedent.

Estate of Powers, 552 N.W.2d 785, 787 (N.D. 1996). In other words,

“the assertion of rights as a beneficiary under the terms of a will is

not regarded as a claim against an estate.” Steen & Berg Co. v.

Berg, 713 N.W.2d 87, 90 (N.D. 2006); see Matter of Estate of

Pallister, 770 P.2d 494, 495 (Kan. Ct. App. 1989) (recognizing that

“an assertion of rights under the terms of a will cannot be regarded

as a claim against an estate”); O’Connor v. Immele, 43 N.W.2d 649,

651 (N.D. 1950) (“The claim of a beneficiary . . . is not a claim

against the estate of the testator but a claim of a property right in

that estate, which is itself subject to claims against the estate.”).

11
¶ 25 Accordingly, sections 15-12-803 and 15-12-804 do not apply

to Town’s alleged demand for the house or an interest therein. See

Estate of Gardner, 845 P.2d 1247, 1252 (N.M. Ct. App. 1992)

(holding that New Mexico’s analogous creditor claims statutes did

not govern devisees’ challenge to distribution of estate property).

Indeed, a division of this court in Murphy v. Glenn, 964 P.2d 581,

583-84 (Colo. App. 1998), declined to apply section 15-12-803 to a

dispute brought by alleged devisees over the distribution of assets

under a will. The division concluded that “[a] will contest, or a

dispute over the distribution of [an] estate, is not a claim against

the estate as contemplated by [section] 15-12-803.” Id.

¶ 26 Johnson argues that Murphy is distinguishable because the

dispute there concerned whether the decedent owned the subject

property at the time of death. Johnson is mistaken. In Murphy, the

decedent plainly owned the subject property at the time of her

death, and the question presented was whether the putative

devisees were entitled to receive the property under the decedent’s

first will. See id. Likewise here, there is no dispute that Colby

owned the residence at issue at her death. The dispute is whether

12
Johnson properly distributed the residence. Murphy, therefore, is

on point.

¶ 27 In sum, we hold that neither section 15-12-803 nor section

15-12-804 applies to a devisee’s demand for distribution of a devise

under a will.3

D. The Will Governs Demands for the Residence

¶ 28 Having determined that section 15-12-804 is inapplicable, we

further conclude the terms of the Will govern demands for Colby’s

residence.

¶ 29 To repeat, the Will says that Colby’s primary residence “[if] not

claimed by children and grandchildren [is] to be sold by Executor

Kellie Johnson [and] she is to evenly distribute the remaining

monies . . . to my daughters . . . .” The Will does not define “claim”

3 We note that a devisee’s assertion of a claim as defined in the
Colorado Probate Code — such as payment for funeral expenses
and expenses of administration — is governed by sections
15-12-803 and 15-12-804, C.R.S. 2020. In that scenario, the
devisee would be a creditor with respect to that particular claim.
We also note that a devisee’s right to recover property improperly
distributed is time limited. A devisee’s right to do so is barred at
the later of the following: three years after the decedent’s death, or
one year after distribution of the property. § 15-12-1006, C.R.S.
2020.

13
or give guidance as to how the children and grandchildren are

supposed to make such a claim.

¶ 30 When construing a will, the controlling consideration is the

testator’s intent; that intent prevails if it is not prohibited by law or

public policy. Heinneman v. Colo. Coll., 150 Colo. 515, 521, 374

P.2d 695, 698 (1962); Estate of Lewis, 93 P.3d 605, 607 (Colo. App.

2004). Determination of intent should be made from the language

of the will itself. Lewis, 93 P.3d at 607. When the meaning of the

testator’s words is plain and unambiguous, the testator’s intent is

easily determined and must be effectuated. Estate of Paulsen, 113

Colo. 373, 379, 158 P.2d 186, 189 (1945). In cases of ambiguity,

nontechnical terms are to be given their ordinary meanings. Id.

¶ 31 The dispute here turns on the meaning of “claim” in the Will.

When used as a verb, a “claim” ordinarily means “to ask for[,]

especially as a right.” Merriam-Webster Dictionary,

https://perma.cc/RUV8-KCDQ. When used as a noun, a “claim”

refers to “a demand for something due or believed to be due.” Id.

Considering the term’s ordinary meaning, we conclude that “claim”

under the Will means to ask for Colby’s residence as a right or a

demand for the residence as due under the Will’s terms.

14
¶ 32 Bolstering our conclusion is the fact that the Will does not

provide a procedure for asserting a claim or specify what form a

claim must take. Had Colby intended for a claim to be more formal

or specific, presumably she would have said so. See Heinneman,

150 Colo. at 520, 374 P.2d at 697 (“[C]ourts will not re-write a will

or insert words not placed therein by the testator.”).

¶ 33 The record reveals at least three possible claims by Town for

Colby’s residence:

 The February 2018 email to Johnson in which Town allegedly

requested all or half of the value of the residence.

 The conversation between Johnson and Town’s attorney’s

regarding Town’s desire for half the value of the residence and

an appraisal.

 The conversation between Johnson’s attorney and Town in

which Town allegedly requested “half of what the [residence]

was worth.”

While Johnson did not consider these to be formal claims, the

question is whether they constituted a “claim” under the ordinary

meaning of the term. Because the district court ended its analysis

after concluding that the communications did not satisfy section

15
15-12-804, we must remand for the court to determine whether, in

light of the ordinary meaning of “claim,” any or all of these

communications were valid claims under the Will. As part of this

determination, the court must ascertain the content of the

communications. To the extent the court finds that Town asked for

only the residence’s value or partial value — as opposed to the

residence itself — the court must decide whether Colby intended

such a request to qualify as a valid claim under the Will. The court,

in its discretion, may take additional evidence.

¶ 34 If the court determines that Town made a valid claim, the

court must then ascertain Colby’s intent regarding what must occur

when two or more claims are made under the Will.

III. Remaining Contentions and Attorney Fees

¶ 35 Town contends that Johnson breached her fiduciary duty by

failing to recognize Town’s request for the residence. We do not

address this issue because the record does not show that Town

presented it to the district court and requested a ruling. See Est. of

Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5

(Colo. 1992) (“Arguments never presented to, considered or ruled

16
upon by a trial court may not be raised for the first time on

appeal.”).

¶ 36 After Town missed the deadline for filing her opening brief,

Johnson moved to dismiss the appeal and for attorney fees and

costs. This court later accepted Town’s opening brief filed out of

time and denied Johnson’s motion to dismiss. This court deferred

ruling on the motion for attorney fees and costs and directed

Johnson to address her argument for fees and costs in the answer

brief. Although Johnson requested attorney fees in the answer

brief, she did not explain why she is entitled to them. Therefore, we

deny her request. See C.A.R. 39.1 (“[T]he principal brief of the party

claiming attorney fees must include a specific request, and explain

the legal and factual basis, for an award of attorney fees.”).

¶ 37 Similarly, because Town did not request attorney fees in the

opening brief, we deny her request made in the reply brief. See id.

IV. Conclusion

¶ 38 The order approving the final settlement of Colby’s estate is

reversed, and the case is remanded for further proceedings

consistent with this opinion.

JUDGE J. JONES and JUDGE YUN concur.

17