To Probate or Not To Probate

By Dr. Diana A. Bustamante

In the event of a loved one’s death, what happens to their belongings? What happens if they didn’t leave a will? Where do those with a vested interest stand in the distribution of assets belonging to the deceased? All of these are questions that are determined in Probate Court. Although many people may fear probate as an intimidating and complex process, it can actually be quite simple and alleviate many problems along the way. 

Probate, taken from the Latin word, probatum, means to prove. 

Probate is the judicial process by which a will is proved valid or invalid. It is the process for transferring the property, either personal or real, of a person who has died (the decedent) to the heirs and/or devisees. Personal property may include intangible items and movable, or tangible items. Intangibles include such items as bank accounts, retirement accounts, annuities, and/or royalties. Tangible or movable items may include furniture, jewelry, artwork, vehicles, and/or appliances. Real property includes real estate and buildings. So, a probate may be opened in order to transfer both real and personal property.

The property of the decedent is transferred according to either the decedent’s will or, if the decedent left no will, according to New Mexico’s laws of intestate succession. When there is a will, the Probate Court Judge is tasked with verifying and validating it. The will should nominate the personal representative (PR)–also used interchangeably with executor and administrator—who will have the legal authority to act on behalf of the estate in transferring the decedent’s property. This person can be a family member, a friend, a business associate, professionals who administer estates, and/or financial institutions. It is the testator—the person who signs the will—who determines who is entrusted to carry out the responsibilities of the estate.

If there is no will, or a will is determined to be invalid, it is the role of the Probate Court to appoint a legally qualified person who has the highest priority to serve (See NMSA 1978-45-3-203 [A] for list of priorities to manage and settle the decedent’s estate). Once the PR has been appointed, he or she will be responsible as a fiduciary of the estate to assure the distribution of the decedent’s assets to the rightful recipients, either the heirs and/or devisees (devisees are those who receive assets from the estate as stipulated in a will), or creditors. 

A probate can be opened in either Probate Court or in District Court. In New Mexico, there are 33 Probate Courts, one in each county. The probate can be opened either by having a lawyer file the application, or pro se, whereby applicants can represent themselves of their own behalf. Usually, a probate must be filed within three years following the death of a person. New Mexico law says that no probate may be filed during the first 120 hours (5 days) following the death. Once filed, a probate should be kept open until all creditors receive notice, make claims, taxes are paid, and the estate assets are distributed among the heirs. 

While New Mexico requires that a probate be opened for a minimum of six months, it must be kept open until all aspects of the estate are settled. Some cases may be easier than others and kept open for the minimum six months; others may take longer, depending on the complexity of the estate. Once the probate is closed in probate court, however, the PR no longer has authority to act for the estate. If there is a need to re-open the probate, it must be re-opened in District Court. 

Not all assets of the decedent are subject to probate. Persons who have property can transfer property through other avenues during their lifetime. In many cases, some assets can be transferred automatically. For example, people can own property as joint tenants, create payable on death (POD) accounts in their banks, transfer on death (TOD) accounts or name beneficiaries for their property. 

Ultimately, it is a good idea for family members to have a conversation about how the assets of the family, the patrimony, will be guarded and protected for future generations. Writing a will is one way that the last wishes of the person are well-articulated and assures the distribution of these assets.

Winter 2018


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