Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific situation.
Detailed Answer
1. What Is a Subpoena in Probate Proceedings?
A subpoena is a written court order that compels a person or entity to:
- Appear and testify (subpoena ad testificandum), or
- Produce documents or records (subpoena duces tecum).
In a Colorado probate case, you typically use a subpoena duces tecum to gather estate records such as bank statements, appraisal reports, or title documents.
2. Which Court Rules Govern Probate Subpoenas?
Colorado Uniform Probate Rule (UPR) 45 incorporates Colorado Rule of Civil Procedure 45 for subpoenas in probate matters. You can review UPR 45 here: UPR 45 – Subpoenas. Rule 45 outlines how to issue, serve, and enforce subpoenas in Colorado courts.
3. Steps to Obtain a Court-Ordered Subpoena
- Identify the Documents or Testimony You Need. List the specific estate records you seek (e.g., the decedent’s bank records from 2018–2020).
- Prepare the Subpoena Duces Tecum. Use the official form in UPR 45. Include:
- Your probate case name and number.
- Name and address of the person or custodian of records.
- A clear description of the documents.
- File a Motion or Application. If the records custodian objects, file a motion with the probate court explaining why the documents are relevant and necessary under C.R.S. § 15-10-408 (authority to compel discovery in probate matters). Link: C.R.S. § 15-10-408.
- Obtain the Judge’s Signature. Submit your subpoena form to the probate clerk. The judge or clerk will sign and issue the subpoena.
- Serve the Subpoena. Serve in person or by certified mail, return receipt requested, at least 14 days before the production date, unless the court orders otherwise. Keep proof of service.
4. Using the Subpoena to Gather Records
Once served, the custodian must produce the requested records on the date, time, and place specified. Common steps include:
- Arrange a secure location for document review or copying.
- Verify each document against your request list.
- Request certified copies if needed for court filings.
5. Enforcing or Quashing the Subpoena
If the custodian fails to comply, file a motion to compel under UPR 45(b). If the documents are privileged or the request is overbroad, the custodian can move to quash or modify the subpoena under UPR 45(c).
Helpful Hints
- Begin early. Subpoena deadlines can delay your probate timeline.
- Be specific. Vague descriptions invite objections.
- Serve properly. Incorrect service can invalidate a subpoena.
- Track costs. You may recover witness and copying fees in some cases.
- Maintain confidentiality. Some estate records may contain sensitive personal data.
- Consult the probate clerk. They can guide you on local filing procedures.