Clovis Probate Lawyer

When someone has died in Clovis, their property can be transferred using the process known as probate. During probate, a representative of the deceased’s estate submits a will (if available), resolves outstanding tax debts, requests protected records (if necessary), and handles other business required. Creditors and other parties can also file claims against the estate. In some cases, the will’s validity may be contested. All of these tasks can be difficult to manage without the help of a Clovis probate lawyer.

Probate can involve considerable time and effort, especially if it’s handled by someone unfamiliar with court proceedings. Since many estate representatives are family members of the deceased party, they are probably going to feel unsure or even overwhelmed at some point. A Clovis probate attorney can assist them in handling the final affairs of someone’s estate. They can also assist you with planning strategies for your own estate if you want to minimize the burden of probate on your surviving loved ones.

New Mexico Financial & Estate Planning Attorneys is ready to help, whether you are the executor, the estate owner, or someone who otherwise has an interest in an estate. Learn more about the probate process and strategies you can use to protect the value of the estate during a confidential, no-obligation case review. Call our Clovis probate law firm at (505) 503-1637 or contact us online to schedule your risk-free appointment today.

Probate Explained by a Clovis Probate Attorney

Probate refers to the process of handling the affairs of someone who has passed away (who is known as the “decedent”). Everything the decedent owned at the time of their death is referred to as their “estate.” 

Probate takes a look at the estate, determines how its property should be transferred, and deals with any other legal matters that are required before the estate can be distributed to the decedent’s heirs.

A typical probate process will follow most or all of the steps below:

• Someone applies for probate — Someone applies to submit an estate for probate. If there is a will, it is submitted along with the application.
• A personal representative is selected — The person in charge of handling the estate is known as its personal representative. They may also be called the executor, administrator, or agent. Probate courts require someone with legal standing to request to be recognized as the estate representative. If no one volunteers, the court may contact an heir or creditor to ask them to serve.
• Notice of probate is given — Once a personal representative has been selected and probate begins, the court requires that the representative post a public notice to allow creditors, contestants, and other claimants with an interest in the estate to submit a petition. There is typically a waiting period of at least two weeks before probate continues.
• The will (if one exists) is verified — The court verifies that the will is valid and that there are no competing wills or other reasons to object to the submitted will’s validity. 
• The representative inventories the estate — After the will is verified (or the estate is declared intestate), the representative must complete an inventory of the estate’s holdings and their approximate value. The representative must also compile all known debts, taxes, or other obligations held by the estate at the time of the decedent’s death.
• Beneficiaries and creditors are notified — The estate representative should contact all heirs, creditors, and others with an interest in the estate to let them know about their claim to estate property.
• Debts and other expenses are settled — Before the estate can be distributed to its heirs, the personal representative has to pay off all debts, including valid creditor claims, taxes, and other obligations. The spouse of the decedent is entitled to receive a spousal allowance under New Mexico law (NM Stat § 45-2-402), which must be paid before any other distributions are made, unless a provision of the will specifically waives this payment.
• Assets are distributed to heirs — After all debts and obligations have been settled, beneficiaries can receive their promised portion of the estate. These beneficiaries are determined by state laws if there is no will.
• Probate closes — Once the estate has been completely distributed, the duties of the estate representative are fulfilled. Probate concludes, and the estate has been effectively dissolved.

The entire process can take several months. If there are any contests to the will or other disputes, a formal probate inquiry may be started, dragging out the time and expense. In the meantime, beneficiaries are left waiting to claim their piece of the estate. Hiring a Clovis probate lawyer can help you smooth over the process, reduce the amount of responsibilities you have, and potentially shorten the time it takes for probate to be handled.

Formal vs. Informal Probate

“Formal” probate refers to cases where there is a property ownership dispute, a will contest, or key legal questions about the estate. One common example of a case that might require formal probate proceedings is one where a creditor or other party maintains that they have a claim to a significant portion of the estate, which would effectively leave little to no property remaining within it if their petition succeeded.

If you need to file for formal probate, you should probably consider reaching out to a Clovis probate lawyer. As personal representative, you are responsible for handling the estate and doing everything you can to protect its value. If you fail to properly manage the estate through formal probate, you could be held accountable by the estate’s heirs.

The majority of probate cases, however, use an informal probate procedure. An informal probate does not have any major disputes or questions of fact. The submitted will is accepted as genuine, or all parties acknowledge that the decedent died intestate. Creditor claims and beneficiary distributions are handled as a matter of course.

Nevertheless, informal probate proceedings can still be lengthy and even complicated for some estates. Suppose the personal representative has difficulty performing a full accounting of the estate or has trouble identifying all named creditors and beneficiaries. In that case, the conclusion of probate can be delayed by months at a time.

On top of these possible complications, the estate representative is required to handle all procedural affairs largely on their own. State employees are allowed to provide basic information but cannot comment on specific issues or provide anything resembling legal advice.

Because of the substantial burden placed upon the personal representative of the estate, they may want to secure legal representation from a reputable probate law firm in New Mexico. 

If someone wishes to avoid placing a substantial burden upon their loved ones or personal representative, they can also seek advice from a Clovis estate planning lawyer. Their attorney can help them anticipate possible challenges and simplify estate management using methods like forming a trust.

What Assets Are Handled Through Probate?

All assets owned solely by the decedent must be inventoried and included in disclosures submitted during probate. If there are assets that the decedent jointly owned and no clear methods have been set aside to determine who assumes their share of ownership, these partial shares or claims likely also need to be declared.

Assets that do not need to go through probate include:

• Assets placed into a living trust (revocable or irrevocable)
• Retirement and investment accounts with a beneficiary designation
• Proceeds from an insurance policy with a named beneficiary
• Accounts with a payable-on-death or transfer-on-death designation
• Titles held by joint tenants with right of survivorship (JTWROS)

In addition, estates worth less than $50,000 total that do not include real property can have their assets distributed using an “affidavit of successor in interest.” For this method to be used, probate must not have been filed, and at least 30 days must have passed since the decedent’s death.

Talk to a Clovis probate lawyer to learn more about what assets have to go through probate and whether you may be able to handle their transfer outside of the court. A Clovis probate attorney can also help you coordinate with a trustee, surviving family members, and others with an interest in the decedent’s estate (or trusts they created during their lifetime).

Using an Affidavit to Transfer a Primary Residence to a Spouse Without Joint Tenancy

If the decedent did not list their spouse on the title of their primary residence, the surviving spouse can potentially have the deed transferred to their name using an “affidavit of surviving spouse.” 

To use this method, the following conditions must be met (per NM Stat § 45-3-1205):

• Probate has not been filed for the estate
• The house was held as community property, or it was left to the surviving spouse in the decedent’s will
• The house’s assessed value does not exceed $500,000
• Six months have passed since the decedent’s death
• The surviving spouse was still married to the decedent at the time of their death

Reach out to a Clovis probate law firm if you have questions about transferring property from an estate.

How Do I File for Probate in Clovis?

Anyone with an interest in the decedent’s estate can file an application for probate in Curry County. This person must submit a physical copy of the original will, if one exists, along with the decedent’s death certificate.

Probate can be filed any time from five days to three years after the decedent’s death. In some cases, probate can be filed after three years if a party would be entitled to a transfer of real property from the estate. Reach out to a Clovis probate attorney if you believe three years may have passed and you are seeking a possible claim to a deceased person’s estate.

How Do the Courts Select a Personal Representative of the Estate?

If the will names a personal representative, the court is going to show preference for this person. Suppose that the person declines the position, or there is no formal declaration, or no will. In that case, the court will prioritize selecting a spouse or child of the decedent as personal representative. Other heirs (called devisees) to the estate are next in priority, followed by creditors.

It is possible for someone who is not any of these parties to serve as personal representative, provided that they can demonstrate some interest in the estate, the well-being of its beneficiaries, or the well-being of the decedent while they lived. For example, they could have been an accountant or an estate planning lawyer for the decedent during their lifetime.

For any party not named by the will to be selected as personal representative, parties in higher levels of priority must acknowledge their ability to otherwise serve and specifically grant permission to the requesting party to jump ahead of them in priority.

What Are the Duties of the Executor/Personal Representative During Probate?

As the personal representative, you are responsible for:

• Submitting a valid version of the decedent’s will (if one exists)
• Performing a detailed inventory and valuation of the estate
• Accounting for and paying all known debts
• Fielding and verifying previously unknown claims for debts
• Filing taxes for the estate, along with paying any back taxes owed by the decedent
• Paying the family allowance and other obligations
• Locating and notifying all estate beneficiaries
• Furnishing records from the estate, if required by law, such as upon request from an heir or from a court in connection with a civil or criminal proceeding
• Facilitating the transfer of titles and deeds to the appropriate party
• Distributing estate assets according to the will (or the laws of intestate succession, if there is no will)

Fulfilling all of these duties can be difficult for the average person. They may even be held liable for mistakes they make when handling the estate. For this reason, it makes sense to reach out to a Clovis probate law firm to get help and ensure that all of your duties are being fulfilled.

Get Help From a Clovis Probate Law Firm That Cares About Its Clients

When you come to New Mexico Financial & Estate Planning Attorneys, you can work with a seasoned Clovis probate lawyer to represent you and the estate. Your Clovis probate attorney’s sole goal is to reduce the burden of estate administration while easing the burden of fulfilling your duties to heirs and the estate itself.

After the death of someone close to you, you are likely to be in a sensitive state. The last thing you would want to do is to compound your stress, especially if you are facing pressure from heirs, creditors, or other parties. In complex cases, you may be forced to make hard choices about how to pay off debts using the estate’s assets, for example. You’ll then be forced to divide property among heirs in an equitable way.

Take the pressure off yourself by working with a Clovis probate attorney who can help you manage all your duties using the most effective strategies available. Our law firm can help you understand the law along with all of your available options, making probate easier to manage and heirs more likely to be satisfied with the final outcome.

Schedule a confidential appointment with an attorney from our Clovis probate law firm with no obligation to use our services further. Call (505) 503-1637 or contact us online to schedule your risk-free probate case review today.