Kettering, C. Edgar

English

University of Denver

Denver Law Review Volume 27 Issue 8 Institute on Problems of the Average-Sized Estate Article 5 June 2021 Testamentary Trusts Should Remain under County Court Jurisdiction C. Edgar Kettering Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation C. Edgar Kettering, Testamentary Trusts Should Remain under County Court Jurisdiction, 27 Dicta 283 (1950). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. August, 1950where the words "joint tenants" or "jointly" were used. Thewriter is not informed whether the words "and" or "or" insertedbetween the owners' names would suffice. No doubt the Attorney-General would rule in such a situation.OTHER MORE HOMELY DEVICES FREQUENTLY BACKFIREThere are many other devices used to transfer property with-out administration, some finding legal justification as in the useof living trusts or conveyances with a reserved life estate. Thereare still others such as joint safety boxes, envelopes containingcurrency or property with a designated beneficiary's name onthe envelope, unrecorded deeds, and similar ingenious deviceswhich, more frequently than. not, result in litigation and a com-plete frustration of the original owner's desires.Those that we have considered, however, constitute the prin-cipal devices now in use where property is transmitted from oneperson to another without court proceedings. It is readily appar-ent that it is possible to transfer property of an almost unlimitedvalue by the use of several of. these devices. The family home,automobile, bank account, securities, postal savings deposits, andgovernment bonds can all be held or owned in such a manner thatupon the death of one person beneficial ownership passes to an-other without estate proceedings. Those who are qualified maydraw conclusions or point a moral by reason of this fact. Thisarticle does no more than summarily consider these simple devices.TESTAMENTARY TRUSTS SHOULD REMAINUNDER COUNTY COURT JURISDICTIONHON. C. EDGAR KETTERINGJudge of the County Court, City and County of DenverThe purpose of this comment is to discourage the practicein will-drafting of taking a testamentary trust out of the juris-diction of the county court.' In nearly every case a testator whodoes it, acts under the misapprehension that he thereby showshis confidence in his trustee and eases his burden. He is doingquite the opposite. Then, again, some will-drafters are confusingthis with the entirely justifiable practice of granting broad pow-ers to the trustee-a subject with which it has no connection.The effect is that every time the trustee needs or wants toconstrue the will, or interpret his rights or duties under thesame, a need which may frequently occur, he must file a separatesuit in the district court. This of course is not as simple a pro-cedure for him as to file a petition in the county court, if the trust'COLO. STAT. ANN., C. 176, § 227(c) (1935).DICTAestate is still pending there. Then again, the county court mayhave the advantage of previous contact with the particular estateand be familiar with the problems of the executor and trusteewith respect to it.There are numerous problems arising in the administrationof a trust estate-often lasting over a period of many years-concerning which the trustee wants the advice or the formal ordersof some court of competent jurisdiction. In addition to the casesof wills with trust provisions which are ambiguous and poorlydrawn, are those in which, although expertly drawn, conditionshave changed or unforeseen contingencies have arisen which re-quire a court interpretation. Moreover, many situations arise inwhich the trustee wants a court order not to clear an ambiguity,but simply for his own protection-and this regardless of howbroad the powers may be. Thus, unlimited discretion may be givenas to amounts to be paid a beneficiary, yet the trustee may wantthe protection of a court order before making substantial monthlydisbursements over a long period of time.The only apparent advantages I can see in removing suchcases from the jurisdiction of the county court are that the trus-tee need not file annual reports, and there is a small docket fee.The first of these is no real benefit to the trustee, because he hasto keep the records which make up the report in either case.Furthermore, most trustees would prefer to file a report of theiracts in court for their own protection. As to the docket fee, itis not large, being less than for decedents' estates.It should be repeated that we are not discussing, nor attempt-ing to discourage granting broad powers to trustees to act withoutcourt order. The trustee can be given any degree of discretion,relieved of giving bond, permitted to act without court order, etc.,and still have the estate remain open as a trust estate under thejurisdiction of the county court. The point is he must be subjectto the jurisdiction of some court, and I have tried to indicate someof the reasons why it is more convenient that it be the countycourt.NICHOLAS HEADS SOUTHERN COLORADO BARThe Southern Colorado Bar Association held its annual meet-ing on July 11 and elected the following officers for the ensuingyear: William B. Nicholas of Walsenburg, president; Ortus F.Adams of Trinidad, vice-president; Gilbert Sanders of Trinidad,secretary-treasurer; and Joseph F. Nigro of Trinidad, representa-tive on the state Board of Governors.THE BOOK TRADER'S CORNERChalkley A. Wilson, Foote Bldg., Sterling, has a set of PacificReporters and U. S. Supreme Court Reports for sale.DICTA Vol. 27

Testamentary Trusts Should Remain under County Court Jurisdiction

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Testamentary Trusts Should Remain under County Court Jurisdiction

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