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Law Offices of Ronald W. Rutz
Coloradoan Archives

September 21, 1999: Unusual Adoption; Buying Real Property with a Friend; Prospecting Probate Properties

Q: I heard that a ninety-something year old man adopted his twenty-two year old friend. Can this really happen?

A: In Colorado, one adult can adopt another adult, as long as that person consents. In fact, I am told by several local attorneys that the twenty-two year old could adopt the ninety-something person.

Why would this happen? Maybe to be sure that the "child" would inherit if there is no Will. Or maybe to prevent a common-law marriage from occurring and thus blocking the "child" from electing against the Will by utilizing a spouse's statutory inheritance right. But yes, this kind of thing can happen in Colorado by statute.

Q: I bought several rental properties with a friend but problems have developed. The units need to be repaired and upgraded after several years of use. One house probably does not meet code requirements (possible fire hazard) and I am suspicious about "activities" in another. My partner refuses to spend any money or join in any court actions. He says to chill out, "get over it," and that I am stuck. I don't want to have my equity shrink, nor do I want to lose part or all of my investment if we are sued or if criminal activity is discovered and the property is confiscated.

A: You are not a "stuckee" and if your partner refuses to cooperate, then your ultimate recourse is to start a partition suit (asking a judge to divide the investments between the two of you). If the Court feels that the properties can not be fairly divided by just retitling, then one or more units could be ordered sold and the net sale proceeds divided.

Unfortunately, the downside of this course of action is that the cost of the court proceedings plus the real possibility of a sale at below fair market value could impact your equity. But it might well be worth it based upon the other financial risks that you are facing.

Q: Your newspaper carries a columnist who answers real estate questions. Recently he wrote that properties in probate are a great prospecting source for real bargains. As an attorney with an active probate practice, I found his advice alarming, unrealistic, and naive. I would be interested in your thoughts.

A: I remember biting my tongue and groaning a lot when I skimmed that column but to be fair I went back and reread it.

In Colorado there is no statutory attorney or trustee fee schedules. The cost to settle most estates, including attorney's fees, usually runs several thousand dollars, maybe an additional several thousand if problems are present. Thus, the examples of the Presley estate (Tennessee), Roosevelt (New York), and Rick Nelson (California) are interesting but not that germane to the Colorado experience, even for large estates. Thus, the threat of huge fees and expenses swamping a probate are really rare in Colorado.

I, like you, have never seen property sold for "bargain" prices (the personal representative and the attorney could possibly be liable to the beneficiaries for a breach of their fiduciary duties) and if money needs to be raised, such as in a farm family situation to pay taxes, estate property is used as collateral for loans, contrary to the statements in the column that such arrangements can not be done.

I am not allowed enough space to correct the numerous misstatements when applied to Colorado. But investors scanning the obituaries to find possible real estate deals will probably become frustrated and families who are in a difficult time should not have this kind of intrusion thrust upon them.

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