In re Estate of Cloos

          Larimer County District Court No. 15PR30 Honorable Devin R. Odell, Judge.

          Announced November 15, 2018 Jean Ann Cloos, Pro Se.

          Rosenberg, Smith & Zipser, PLLC, Amy K. Rosenberg, Fort Collins, Colorado, for Appellee Drexel H. Cloos.

          Kaufman & Findley, PC, Joseph D. Findley, Loveland, Colorado, for Appellee Joseph D. Findley.

          OPINION

          RICHMAN JUDGE.

         ¶ 1 Jean Ann Cloos appeals the final settlement of the estate of her mother, Irene Mae Cloos. She contends that the district court erred by allocating $50, 000 in "elective-share" funds from the probate estate to the decedent's husband of sixty-three years and Jean Ann's father, Drexel H. Cloos (husband), and by permitting conflicts of interest. We reverse the order as to the award of $50, 000 as an elective share and remand for further proceedings.

         I. Background

         ¶ 2 The decedent died testate, devising her entire estate to Jean Ann.^[1] Although the accounting of the estate is not fully developed in the record, it appears that the decedent owned the following property on the date of her death:

. one-half of a house in Fort Collins appraised at $325, 000 - husband owned the other half, and Jean Ann and husband both resided there;

. a public employee retirement account of unknown value;

. an undetermined amount of personal property; and

. a shared cabin in Wyoming with an assessed value of about $277, 000, to which husband held survivorship rights.

         ¶ 3 The decedent's will nominated Jean Ann as the personal representative (PR) for the estate, and she was appointed approximately four months after the decedent's death. Jean Ann was represented by counsel for some periods during probate but often represented herself.

         ¶ 4 Husband was represented by counsel. Because the will devised the entire estate to Jean Ann, husband made statutory claims for shares of the estate. He claimed a $32, 000 family allowance (FA) and a $32, 000 exempt property allowance (EPA).^[2] See §§ 15-11-403, -404, C.R.S. 2018. He also petitioned for a supplemental elective share of the marital property^[3] pursuant to sections 15-11-201 to -211, C.R.S. 2018.

         ¶ 5 After several months without a response to his claims, husband petitioned the district court to remove Jean Ann and appoint a successor PR. After a hearing, the court ordered her removal, finding that it was in the best interest of the estate to proceed "without the burden of mutual rancor and distrust evident at the hearing." The court appointed Joseph D. Findley as the successor PR.

         ¶ 6 Findley appraised the value of the Fort Collins home at $325, 000. He moved for an order to approve selling the half owned by the estate to husband. Husband's payment for the purchase price of $162, 500 was to be paid with (1) a credit of $64, 000 from probate estate funds for his FA and EPA claims; (2) a credit of $50, 000 from probate estate funds for his "statutory minimum elective-share"; and (3) $48, 500 cash. The district court approved the sale. As of the final accounting - ...