CO Code § 15-15-101 (2021)
2021 Colorado Code|Title 15 - Probate, Trusts, and Fiduciaries|Article 15 - Nonprobate Transfers on Death|Part 1 - Provisions Relating to Effect of Death|§ 15-15-101. Nonprobate Transfers on Death

  A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary. This subsection (1) includes a written provision that:   Money or other benefits due to, controlled by, or owned by a decedent before death must be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later;    Money due or to become due under the instrument ceases to be payable in the event of death of the promisee or the promisor before payment or demand; or    Any property controlled by or owned by the decedent before death which is the subject of the instrument passes to a person the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later. (1.5) A conveyance or deed of gift described in subsection (1) of this section that relates to an interest in real property may be created pursuant to part 4 of this article and, if so created, shall be subject to the rights of third parties described in part 4 of this article.       Under the provisions of subsection (1) of this section, it is permissible to designate as a beneficiary, payee, or owner a trustee named in an inter vivos or testamentary trust in existence at the date of such designation. It is not necessary to the validity of any such trust that there be in existence a trust corpus other than the right to receive the benefits or to exercise the rights resulting from such a designation. It is also permissible to designate as a beneficiary, payee, or owner a trustee named in, or ascertainable under, the will of the designator. The benefits or rights resulting from such a designation shall be payable or transferable to the trustee upon admission of the will to probate if a testamentary trustee is the designated payee or transferee, subject to the right of the payer to impose requirements and take actions as may a personal representative acting under section 15-12-913. A trustee shall not be disqualified to receive such benefits or rights merely because the trust under which he was to act or is acting fails to come into existence or has been distributed in part or whole, but such a trustee shall receive and distribute the proceeds in accord with the terms of such trust.    If a trustee is designated pursuant to subsection (2) of this section and no qualified trustee makes claim to the benefits or rights resulting from such a designation within one year after the death of the designator, or if evidence satisfactory to the person obligated to make the payment or transfer is furnished within such one-year period that there is or will be no trustee to receive the proceeds, payment or transfer shall be made to the personal representative of the designator, unless otherwise provided by such designation or other controlling agreement made during the lifetime of the designator.    The payment of the benefits due or a transfer of the rights given under a designation pursuant to subsection (2) or (3) of this section and the receipt for such payment or transfer executed by the trustee or other authorized payee thereof shall constitute a full discharge and acquittance of the person obligated to make the payment or transfer.    Payment of the benefits due or the transfer of the rights given in accordance with a designation under the provisions of subsection (2) of this section shall not cause such benefits or rights to be included in the property administered as part of the designator's estate under this code or to be subject to the claims of his or her creditors, except as provided in part 2 of article 11 of this title and in section 15-15-103.    Except as otherwise provided in part 2 of article 11 of this title and in section 15-15-103, the express provisions of the trust agreement, declaration of trust, or testamentary trust shall control and regulate the extent to which the benefits or rights payable or transferable under such a designation shall be subject to the debts of the designator if paid or transferred under the provisions of subsection (2) of this section.    Repealed.     History. Source: L. 90: Entire article R&RE, p. 908, § 1, effective July 1. L. 2004: (1.5) added, p. 734, § 3, effective August 4. L. 2006: (5) and (6) amended and (7) repealed, pp. 390, 391, §§ 18, 19, 20, effective July 1 L. 2014 : (5) and (6) amended,(HB 14-1322), ch. 296, p. 1241, § 15, effective August 6.    Editor's note:   This section is similar to former § 15-15-201 as it existed prior to 1990.   ANNOTATION   Law reviews. For note on the utility of testamentary and inter vivos life insurance trusts, see 32 Rocky Mt. L. Rev. 382 (1960). For article, “An Aspect of Estate Planning in Colorado: The Revocable Inter Vivos Trust”, see 43 Den. L.J. 296 (1966).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   This section is not intended to expand the means by which a testamentary power of appointment may be exercised, nor does it obviate the requirement that a testamentary instrument be probated. The statute merely makes it clear that the exercise of a power of appointment in a will does not make the transfer testamentary, nor does it make the transferred asset a part of the probate estate. In re Estate of Scott, 77 P.3d 906 (Colo. App. 2003).   When the trust instrument provides that a power of appointment may only be exercised in a will, the instrument exercising the power must satisfy the statutes relating to wills and be probated in order to exercise and implement the power of appointment. In re Estate of Scott, 77 P.3d 906 (Colo. App. 2003).   Reservations by settlor of inter vivos trust do not render trust testamentary. Where the settlor of an inter vivos trust reserves to himself the income of the trust estate and the right to change or revoke the trust and the right to disapprove certain investments, such reservations do not render the trust testamentary. Denver Nat'l Bank v. Brecht, 137 Colo. 88 , 322 P.2d 667 (1958).   So that settlor obtains advantages of a will without the necessity of making one. Where the property involved in a trust is assigned, transferred, and set over to a trustee and remains in the name of the trustee, the interest of a settlor therein passes to the trustee in presenti and while the settlor remains alive the transfer is inter vivos and not testamentary. Hence, if an owner of property can dispose of it inter vivos and thereby render a will unnecessary for accomplishment of his practical purposes, he has a right to do so. The motive in making such a transfer may be to obtain the practical advantages of a will without the necessity of making one, but the motive is immaterial. Denver Nat'l Bank v. Brecht, 137 Colo. 88 , 322 P.2d 667 (1958).   An inter vivos trust does not become testamentary when a pour-over is made into it; therefore, the instrument creating the trust need not be executed with the formality of a will. In re Estate of Gardner, 31 Colo. App. 361, 505 P.2d 50 (1972).   To create a valid “pour-over” provision, it is only necessary that a trust be evidenced by a written instrument; that a trust be in existence at the time the will is executed; and that a trust be capable of being identified with reasonable certainty. In re Estate of Allen, 28 Colo. App. 574, 475 P.2d 629 (1970); In re Estate of Gardner, 31 Colo. App. 361, 505 P.2d 50 (1972).   This section removes certain conceptual difficulties which arise from the application of either of the doctrines of incorporation by reference or the doctrine of facts of independent significance, and, second, it validates testamentary dispositions of property to existing trusts. In re Estate of Allen, 28 Colo. App. 574, 475 P.2d 629 (1970).   Clear, explicit, definite, unequivocal, and unambiguous language, or conduct is required to establish an express or voluntary trust. Because the parties to a savings and loan account failed to meet these requirements, they did not establish that a valid inter-vivos testamentary trust was created. Goemmer v. Hartman, 791 P.2d 1238 (Colo. App. 1990).   The essential requirements of a gift inter-vivos are a clear and unmistakable intention to make a gift, and a complete parting of possession and surrender by the donor of all control and dominion over the same to the donee. Goemmer v. Hartman, 791 P.2d 1238 (Colo. App. 1990).   Applied in Ayres v. King, 643 P.2d 788 (Colo. App. 1981).