(1) Except as specifically provided by the person establishing the principal, this subpart 7 shall apply:
To life estates, estates for a term, remainders, reversions, and other legal estates created before July 1, 2001, or after July 1, 2010;
Except as provided in paragraph (b) of subsection (2) of this section, to trusts inexistence before July 1, 2001, that have elected:
Not to have subparts 1 through 6 of this part 4 apply to such trust, in accordance withsection 15-1-434 (2); or
To have the prior laws apply in accordance with section 15-1-434 (3); and
(c) To trusts in existence before July 1, 2001, that are subject to section 15-1-434 (3) and that have not elected to have subparts 1 through 6 of this part 4 apply to the trust, in accordance with section 15-1-434 (3).
(2) (a) This subpart 7 shall apply retroactively to a life estate or estate for term in principal, which estate was created during the period beginning on July 1, 2001, and before July 1, 2010, and also to the remainder or reversion that commences in possession upon the termination of such life estate or estate for a term unless a tenant or a remainderman of such principal, or any part of such principal, elects to apply and complies with the provisions of subsection (3) of this section.
(b) This subpart 7 shall apply retroactively to trusts described in paragraphs (b) and (c) of subsection (1) of this section beginning on July 1, 2001, unless the qualified beneficiaries of the trust elect to apply and comply with the provisions of section 15-1-405.
(3) (a) A tenant or a remainderman of principal, or any part of such principal, may make and deliver and, if required, record a notice of election as provided in this subsection (3) on or before July 1, 2009.
The notice of election shall be a written statement of the election by such tenant orremainderman, against the retroactive application of this subpart 7 to such estates in such principal. The notice of election shall include a reference to this subsection (3); the dates of the instruments creating the present and future legal estates in such principal; the names of the persons creating such estates; a description of the principal, including the location of such principal; a description of such estates and the names or descriptions of the persons who are tenants and remaindermen of such principal; identification of which such persons are tenants and which are remaindermen; and the name and address of the person making the election. The notice of election shall be signed and acknowledged by the person making the election.
(I) In the case of an election made by a tenant, notice shall be delivered to the othertenants and to the remaindermen of the principal. In the case of an election made by a remainderman, notice shall be delivered to the other remaindermen and to the tenants of the principal.
If the estate of the remainderman is unvested, notice may be made by or delivered tothe persons then living or in existence who would, if then living or in existence, succeed to the principal upon the termination of the life estate or estate for a term in the principal.
In the case of a child under the age of eighteen years, such notice may be made byor delivered to a conservator, guardian, or parent of such child. In the case of a person who is not competent to manage his or her affairs, such notice may be made by or delivered to the conservator, guardian, or person acting under a general power of attorney with respect to the business or financial affairs of such individual.
The notice of election shall be considered delivered to the person to whom deliveryis required to be made when the notice of election or a copy thereof is delivered in person or when mailed by registered or certified mail, return receipt requested, to such person.
The recording of notice as provided in paragraph (d) of this subsection (3) shallfulfill the requirement of delivery of such notice in the case of any unborn, unascertained, or unknown person and in the case of a child who is under the age of eighteen years or an individual who is not competent to manage his or her affairs and for whom there is no person authorized by subparagraph (III) of this paragraph (c) to receive such notice.
(d) (I) In the case that the principal is realty, a copy of the notice of election with an additional statement made as required by this subparagraph (I) shall be recorded with the recorder of the county where such realty is located. The additional statement shall state to whom, when, and by what means the notice was mailed or otherwise delivered and be signed by the person making the election.
In the case that the principal is not realty, a copy of the notice with such additionalstatement may be recorded with the recorder of the county where the principal is located or, if the principal is intangible personalty, where the address of the tenant in possession of such principal is located. If such location is not within this state, then such copy and statement shall be recorded with the recorder of the city and county of Denver.
Such copy of the notice and additional statement when recorded as provided in thisparagraph (d) are prima facie evidence of the facts therein stated.
(e) No fiduciary for any trust, estate, individual, or other person with an interest, right, or power affected by the retroactive application of such amendments shall be required to make such election, nor shall such fiduciary be held responsible for not making such election.
Source: L. 2009: Entire section added, (HB 09-1241), ch. 169, p. 748, § 14, effective April 22.