01 March 2007

Probate Silliness

Lawyers are trained to put up with whatever B.S. paperwork is put before us in order to achieve the desired objective. If this can be done relatively inexpensively and by rote, ideally through less expensive than lawyers paralegals, there is little legislative incentive for change. As a result, mindless redundancy accumulates. This is true even in legal systems that are, overall, state of the art.

Colorado has the cheapest, easiest, most private probate system in the entire United States. The vast majority of probate cases are handled by a court clerk without involvement of a judge, in a form based system capable of comprehension by an educated layman. But, that doesn't mean it is perfect.

There are four forms that you need to prepare to have a Will informally probated and to have a personal representative (aka executor) appointed in Colorado (presented here in logical order):

1. Application For Informal Probate Of Will and Informal Appointment of Personal Representative(CPC 11)
2. Informal Probate of Will and Informal Appointment of Personal Representative (CPC 12-T)
3. Acceptance of Appointment (CPC 18)
4. Letters (CPC 17)

Slight variants of the first two forms exist in cases where there is no Will.

Now, any sensible person should realize that the second and third forms above are absolutely useless to anyone who isn't enthralled with legal formalism. Form CPC 12-T recites, item by item, that what was stated in Form CPC 11 is true. And, an acceptance of an appointment, required in Form CPC 18, can fairly be inferred on the part of anyone who delivers to the probate registrar a request to be appointed. It is asking for consent that has already been granted.

Third parties always want Letters (CPC 17) and nothing else.

It would be simple enough to add a sentence containing an acceptance of appointment in advance into the boilerplate of the application (and also a consent to service of process in Colorado, which now requires another form for out of state executors), and to add to the top of the Letters (CPC 17), a sentence that simply states: "Petitioner's application is accepted and the Registrar finds the facts stated in the application to be true."

This slight change would greatly reduce mistakes and administrative burdens for non-lawyers seeking to probate estates, by cutting in half the number of forms they have to fill out and the number of blanks that must be completed, but would not change the amount of information available to the court system at all. It makes perfect sense to everyone but gray haired probate professors who are intellectually attached to the formalistic rules of civil procedure that existed before the Federal Rules of Civil Procedure were adopted in the 1930s.

Colorado has a good system, largely because it adopted the administrative provisions of the Uniform Probate Code (UPC). The substantive provisions of the UPC have been widely adopted, but the administrative provisions which reduce the need for involvement from probate lawyers and probate courts, in routine decedent's estates, have not been widely adopted, due in large part to opposition from the probate bar. One suspects that a fairly archaic set of forms was adopted to mute opposition to what was already a radical change in probate procedure. Keeping the old forms made the documentation look similar to the pre-UPC status quo, even though it was radically different in substance.

Alas, given the politics of the situation, I doubt that this little bit of excessive red tape will ever be trimmed back. Historically, paperwork tends to get more involved over time, not more streamlined. But, one can always dream.

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