What is Probate?
The Probate Process
If there is property that must be transferred, a guardian or custodian of a child appointed, etc, a probate needs to be opened. The process by which we pay the bills and transfer the property of someone who has died is called "probate."
- Someone must start the process by filing the proper forms in either District or Probate Court
- The person appointed to represent the Deceased is the "Personal Representative"
- Usually the person filing the paperwork is seeking to be the Personal Representative
- State law tells us the priority for selection of the Personal Representative
- New Mexico has a simplified probate process, called an informal probate, that will handle 90% of all probate cases; minimal court supervision, and can be done quickly
The Applicant Must Answer
- When did the person die?
- Where was the Deceased living at time of death?
- Where was the Deceased property located?
- Is the applicant the person with priority to serve as Personal Representative?
- If not priority, are consents of others on file?
- Is the original will being filed?
- Was the will properly executed?
- Are all the heirs (those who would inherit if no will made) and all the devisees (those named in the will) listed?
If everything is correct: the Judge will sign the order
If there are errors: the errors may be corrected by an amended application
Once the judge has signed the order:
- Either Letters of Administration (if no will) or Letters Testamentary (if there is a will) are issued
- The Personal Representative now has the power to collect the property, pay the bills, and distribute the estate
- There are several forms the Personal Representative may be required to file: Notice to Heirs, Notice to Creditors, Inventory, Accounting, Notice of Proposed Distribution, Notice of Distribution, and a Closing Declaration
The Personal Representative has a fiduciary obligation to the estate. This means the Personal Representative must act with the "punctilio of honor" towards the estate and must not consider his own self interest first
If someone believes that the Personal Representative is not doing the job correctly, he should file a motion stating what he believes the Personal Representative is doing wrong
Note: Please be advised that this communication does NOT create an attorney-client relationship. An attorney-client relationship will only be created after the firm agrees to accept representation and a retainer letter is received from the client.