C.R.S. Section 15-12-1403
Apportionment by will or other dispositive instrument

(1)

Except as otherwise provided in subsection (3) of this section, the following rules apply:

(a)

To the extent that a provision of a decedent’s will expressly and unambiguously directs the apportionment of an estate tax, the tax shall be apportioned accordingly.

(b)

Any portion of an estate tax not apportioned pursuant to paragraph (a) of this subsection (1) shall be apportioned in accordance with any provision of a revocable trust of which the decedent was the settlor that expressly and unambiguously directs the apportionment of an estate tax. If conflicting apportionment provisions appear in two or more revocable trust instruments, the provision in the most recently dated instrument prevails. For purposes of this paragraph (b):

(I)

A trust is revocable if it was revocable immediately after the trust instrument was executed, even if the trust subsequently becomes irrevocable; and

(II)

The date of an amendment to a revocable trust instrument is the date of the amended instrument only if the amendment contains an apportionment provision.

(c)

If any portion of an estate tax is not apportioned pursuant to paragraph (a) or (b) of this subsection (1), and a provision in any other dispositive instrument expressly and unambiguously directs that any interest in the property disposed of by the instrument is or is not to be applied to the payment of the estate tax attributable to the interest disposed of by the instrument, the provision controls the apportionment of the tax to that interest.

(2)

Subject to subsections (3) and (4) of this section, and unless the decedent expressly and unambiguously directs to the contrary, the following rules apply:

(a)

If an apportionment provision specifically directs that a person receiving an interest in a property under an instrument is to be exonerated from the responsibility to pay an estate tax that would otherwise be apportioned the interest:

(I)

The tax attributable to the exonerated interest shall be apportioned among other persons receiving interests in the apportionable estate passing under the same instrument; or

(II)

The deficiency shall be apportioned ratably among other persons receiving interests in the apportionable estate that are not exonerated from apportionment of the tax if the values of the other interests are less than the tax attributable to the exonerated interest.

(b)

If an apportionment provision directs that an estate tax is to be apportioned to a specific interest in property, recipients of other interests in the apportionable estate are indirectly exonerated from the responsibility to pay such tax; however, such indirect exoneration does not preclude the application of section 15-12-1404 if the value of the interest to which the tax is apportioned is insufficient to pay the tax in full.

(c)

If an apportionment provision directs that an estate tax is to be apportioned to a specific interest in property, a portion of which qualifies for a marital or charitable deduction, the estate tax shall first be apportioned ratably among the holders of the portion that does not qualify for a marital or charitable deduction and then apportioned ratably among the holders of the deductible portion to the extent that the value of the nondeductible portion is insufficient.

(d)

Except as otherwise provided for in paragraph (e) of this subsection (2), if an apportionment provision directs that an estate tax be apportioned to property in which one or more time-limited interests exist, other than interests in specified property under section 15-12-1407, the tax shall be apportioned to the principal of that property, regardless of the deductibility of some of the interests in that property.

(e)

If an apportionment provision directs that an estate tax is to be apportioned to the holders of interests in property in which one or more time-limited interests exist and a charity has an interest that otherwise qualifies for an estate tax charitable deduction, the tax shall first be apportioned, to the extent feasible, to interests in property that have not been distributed to persons entitled to receive the interests.

(3)

A provision that apportions an estate tax is ineffective to the extent that it increases the tax apportioned to a person having an interest in the gross estate over which the decedent has no power to transfer immediately before the decedent executed the instrument in which the apportionment direction was made. For purposes of this subsection (3), a testamentary power of appointment is a power to transfer the property that is subject to the power.

(4)

An apportionment provision expressly directing estate taxes to be paid from the “residue” of the subject probate or trust estate, or using language of similar effect, shall be subject to the following construction:

(a)

If the gross estate includes assets not passing under the dispositive instrument and the beneficiaries of those assets and the beneficiaries of the residue are different persons, this part 14 shall apply unless there is an express and unambiguous statement that the estate tax attributable to the assets shall also be paid from the residue.

(b)

If the dispositive instrument contains pre-residuary gifts and the residuary estate is insufficient to pay all estate taxes due, the apportionment provision directing payment from the residue shall be effective with respect to the residue as provided for pursuant to paragraph (b) of subsection (2) of this section, and this part 14 shall apply only to specify the source of payment for estate tax that cannot be paid from the residue. In this event, neither section 15-12-902 nor any other statutory or common law rule of abatement shall affect the apportionment of estate tax among the pre-residuary gifts.

(c)

When a gift qualifying for an estate tax marital or charitable deduction is made from a portion of the residue, the provisions of paragraph (c) of subsection (2) of this section shall apply, unless there is an express and unambiguous statement in the dispositive instrument of an intent to not fully utilize the available marital or charitable deduction. For this purpose, a direction to pay estate tax from the residue without “apportionment” or “right of contribution”, or language of similar effect, does not constitute an express and unambiguous statement sufficient to avoid the application of paragraph (c) of subsection (2) of this section.

(5)

An express and unambiguous apportionment of estate tax pursuant to this section does not, by itself, affect rights of recovery that may be available to a fiduciary under federal tax law. An intent to waive a right of recovery provided in sections 2206, 2207, 2207A, and 2207B of the internal revenue code of 1986, as amended, shall be expressly stated in the dispositive instrument in the manner described in such sections.

Source: Section 15-12-1403 — Apportionment by will or other dispositive instrument, https://leg.­colorado.­gov/sites/default/files/images/olls/crs2023-title-15.­pdf (accessed Oct. 20, 2023).

15‑12‑101
Devolution of estate at death 15‑12‑102
Necessity of order of probate for will 15‑12‑103
Necessity of appointment for administration 15‑12‑104
Claims against decedent 15‑12‑105
Proceedings affecting devolution and administration - jurisdiction of subject matter 15‑12‑106
Proceedings within the exclusive jurisdiction of court - service - jurisdiction over persons 15‑12‑107
Scope of proceedings - proceedings independent - exception 15‑12‑108
Probate, testacy, and appointment proceedings - ultimate time limit 15‑12‑109
Statutes of limitations on decedent’s cause of action 15‑12‑201
Venue for first and subsequent estate proceedings - location of property 15‑12‑203
Priority among persons seeking appointment as personal representative 15‑12‑204
Demand for notice of order or filing concerning decedent’s estate 15‑12‑301
Informal probate or appointment proceedings - application - contents 15‑12‑302
Informal probate - duty of registrar - effect of informal probate 15‑12‑303
Informal probate - proof and findings required 15‑12‑304
Informal probate - unavailable in certain cases 15‑12‑305
Informal probate - registrar not satisfied 15‑12‑306
Informal probate - notice and information requirements 15‑12‑307
Informal appointment proceedings - delay in order - duty of registrar - effect of appointment 15‑12‑308
Informal appointment proceedings - proof and findings required 15‑12‑309
Informal appointment proceedings - registrar not satisfied 15‑12‑310
Informal appointment proceedings - notice requirements 15‑12‑311
Informal appointment unavailable in certain cases 15‑12‑401
Formal testacy proceedings - nature - when commenced 15‑12‑402
Formal testacy or appointment proceedings - petition - contents 15‑12‑403
Formal testacy proceedings - notice of hearing on petition 15‑12‑404
Formal testacy proceedings - written objections to probate 15‑12‑405
Formal testacy proceedings - uncontested cases - hearings and proof 15‑12‑406
Formal testacy proceedings - contested cases 15‑12‑407
Formal testacy proceedings - burdens in contested cases 15‑12‑408
Formal testacy proceedings - will construction - effect of final order in another jurisdiction 15‑12‑409
Formal testacy proceedings - order - foreign will 15‑12‑410
Formal testacy proceedings - probate of more than one instrument 15‑12‑411
Formal testacy proceedings - partial intestacy 15‑12‑412
Formal testacy proceedings - effect of order - vacation 15‑12‑413
Formal testacy proceedings - vacation of order for other cause 15‑12‑414
Formal proceedings concerning appointment of personal representative 15‑12‑501
Supervised administration - nature of proceedings 15‑12‑502
Supervised administration - petition - order 15‑12‑503
Supervised administration - effect on other proceedings 15‑12‑504
Supervised administration - powers of personal representative 15‑12‑505
Supervised administration - interim orders - distribution and closing orders 15‑12‑601
Qualification 15‑12‑602
Acceptance of appointment - consent to jurisdiction 15‑12‑603
Bond not required without court order - exceptions 15‑12‑604
Bond amount - security - procedure - reduction 15‑12‑605
Demand for bond by interested person 15‑12‑606
Terms and conditions of bonds 15‑12‑607
Order restraining personal representative 15‑12‑608
Termination of appointment - general 15‑12‑609
Termination of appointment - death or disability 15‑12‑610
Termination of appointment - voluntary 15‑12‑611
Termination of appointment by removal - cause - procedure 15‑12‑612
Termination of appointment - change of testacy status 15‑12‑613
Successor personal representative 15‑12‑614
Special administrator - appointment 15‑12‑615
Special administrator - who may be appointed 15‑12‑616
Special administrator - appointed informally - powers and duties 15‑12‑617
Special administrator - formal proceedings - power and duties 15‑12‑618
Termination of appointment - special administrator 15‑12‑619
Public administrator - appointment - oath - bond - deputy 15‑12‑620
Public administrator - responsibility for protecting decedent’s estate - duty of persons holding property 15‑12‑621
Public administrator - decedents’ estates - areas of responsibility 15‑12‑622
Public administrator - acting as conservator or trustee 15‑12‑623
Public administrator - administration - reports - fees 15‑12‑701
Time of accrual of duties and powers 15‑12‑702
Priority among different letters 15‑12‑703
General duties - relation and liability to persons interested in estate - duty to search for a designated beneficiary agreement - standing to sue 15‑12‑704
Personal representative to proceed without court order - exception 15‑12‑705
Duty of personal representative - information to heirs and devisees 15‑12‑706
Duty of personal representative - inventory and appraisement 15‑12‑707
Employment of appraisers 15‑12‑708
Duty of personal representative - supplementary inventory 15‑12‑709
Duty of personal representative - possession of estate 15‑12‑710
Power to avoid transfers 15‑12‑711
Powers of personal representatives - in general 15‑12‑712
Improper exercise of power - breach of fiduciary duty 15‑12‑713
Sale, encumbrance, or transaction involving conflict of interest - voidable - exceptions 15‑12‑714
Persons dealing with personal representative - protection 15‑12‑715
Transactions authorized for personal representatives - exceptions 15‑12‑716
Powers and duties of successor personal representative 15‑12‑717
Corepresentatives - when joint action required 15‑12‑718
Powers of surviving personal representative 15‑12‑723
Assets concealed or embezzled 15‑12‑801
Notice to creditors 15‑12‑802
Statutes of limitations 15‑12‑803
Limitations on presentation of claims 15‑12‑804
Manner of presentation of claims 15‑12‑805
Classification of claims 15‑12‑806
Allowance of claims 15‑12‑807
Payment of claims 15‑12‑808
Individual liability of personal representative 15‑12‑809
Secured claims 15‑12‑810
Claims not due and contingent or unliquidated claims 15‑12‑811
Counterclaims 15‑12‑812
Execution and levies prohibited 15‑12‑813
Compromise of claims 15‑12‑814
Encumbered assets 15‑12‑815
Administration in more than one state - duty of personal representative 15‑12‑816
Final distribution to domiciliary representative 15‑12‑901
Successors’ rights if no administration 15‑12‑902
Distribution - order in which assets appropriated - abatement 15‑12‑903
Right of retainer 15‑12‑904
Interest on general pecuniary devise 15‑12‑905
Penalty clause for contest 15‑12‑906
Distribution in kind - valuation - method 15‑12‑907
Distribution in kind - evidence 15‑12‑908
Distribution - right or title of distributee 15‑12‑909
Improper distribution - liability of distributee 15‑12‑910
Purchasers from distributees protected 15‑12‑911
Partition for purpose of distribution 15‑12‑912
Private agreements among successors to decedent binding on personal representative 15‑12‑913
Distributions to trustee 15‑12‑914
Disposition of unclaimed assets 15‑12‑915
Distribution to person under disability 15‑12‑916
Apportionment of estate taxes 15‑12‑1001
Formal proceedings terminating administration - testate or intestate - order of general protection 15‑12‑1002
Formal proceedings terminating testate administration - order construing will without adjudicating testacy 15‑12‑1003
Closing estates - by sworn statement of personal representative 15‑12‑1004
Liability of distributees to claimants 15‑12‑1005
Limitations on proceedings against personal representative 15‑12‑1006
Limitations on actions and proceedings against distributees 15‑12‑1007
Certificate discharging liens securing fiduciary performance 15‑12‑1008
Subsequent administration 15‑12‑1009
Estates not closed after three years or more 15‑12‑1101
Effect of approval of agreements involving trusts, inalienable interests, or interests of third persons 15‑12‑1102
Procedure for securing court approval of compromise 15‑12‑1201
Collection of personal property by affidavit 15‑12‑1202
Effect of affidavit 15‑12‑1203
Small estates - summary administrative procedure 15‑12‑1204
Small estates - closing by sworn statement of personal representative 15‑12‑1205
Time of taking effect - provisions for transition 15‑12‑1301
Definitions 15‑12‑1302
Petition to determine heirship - devisees - interests in property 15‑12‑1303
Hearing - notice - service 15‑12‑1304
Appearance - hearing 15‑12‑1305
Judgment 15‑12‑1306
Decree - conclusive and when - reopening 15‑12‑1307
Title of proceedings 15‑12‑1308
Proceedings under the rules of civil procedure 15‑12‑1309
Effective date - applicability 15‑12‑1401
Short title 15‑12‑1402
Definitions 15‑12‑1403
Apportionment by will or other dispositive instrument 15‑12‑1404
Statutory apportionment of estate taxes 15‑12‑1405
Credits and deferrals 15‑12‑1406
Insulated property, advancement of tax - definitions 15‑12‑1407
Apportionment and recapture of special elective benefits 15‑12‑1408
Securing payment of estate tax from property in possession of fiduciary 15‑12‑1409
Collection of estate tax by fiduciary 15‑12‑1410
Right of reimbursement 15‑12‑1411
Action to determine or enforce part 15‑12‑1412
Uniformity of application and construction 15‑12‑1413
Severability 15‑12‑1414
Delayed application
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Current through Fall 2024

§ 15-12-1403’s source at colorado​.gov