Santa Fe Probate Lawyer

When someone dies, their estate is settled through a process called probate. During probate, a personal representative of the estate (sometimes called an executor or administrator) pays all of the estate’s financial obligations, including administrative costs and creditor claims. Once all the expenses and debts have been paid, the personal representative can distribute the estate’s remaining assets to their heirs. 

If the person who died had strategically arranged their estate and had minimal debts, then probate can be processed fairly and smoothly. However, some estates have issues and complicating factors that prolong the process. If an estate faced litigation, such as a will contest, then asset distribution must be delayed until all issues are resolved. When these cases arise, the personal representative can seek a Santa Fe probate lawyer to ask for assistance.

The attorneys at New Mexico Financial Law have decades of collective experience handling cases involving probate, trusts, estate planning, creditor disputes, and similar matters. When you come to us, we will do everything we can to resolve probate-related challenges and expedite the release of estate assets. You can find out more about the options and strategies available to you during a confidential, no-obligation consultation. Call or contact us online to schedule your case review today.

Hiring a Santa Fe Probate Attorney as Due Diligence

Personal representatives may wish to consult with a Santa Fe probate attorney at key stages in the process. An attorney can recommend strategies and help the executor decide on the most prudent actions to take in light of applicable laws and the estate’s unique circumstances.

What Are the Personal Representative’s Duties During Santa Fe Probate?

By accepting their role as personal representative of an estate, an individual acknowledges that they have a general duty to settle the estate in the manner described in the probated will. They must carry out this process “as expeditiously and efficiently as is consistent with the best interests of the estate” (NM Stat § 45-3-703).

During informal probate, the courts have a general expectation that the personal representative should continue in their estate administration duties without waiting for direction or an order from the district court (NM Stat § 45-3-704). They should only wait for clarification, direction, or a resolution when there is a valid reason to presume that moving ahead would infringe upon the rights of a creditor, heir, or other party with an interest in the estate.

In addition to these general duties, the personal representative has many specific fiduciary duties, including a duty to:

• Furnish timely notice of their appointment to heirs and parties who filed a demand for notice.
• Provide notice of hearings and all other relevant proceedings to heirs, creditors, and interested parties who filed a demand for notice.
• Take steps to possess all estate property and adequately maintain it, such as by cleaning out a residence, parking a valuable vehicle in a secure garage, renewing applicable insurance policies, and making inquiries into all financial institutions that served the decedent (NM Stat § 45-3-709).
• Take other necessary steps to competently secure and manage estate assets to the extent reasonably possible to prevent damage, loss, conversion, or depreciation of value.
• Create a comprehensive inventory of estate assets, along with accurate valuations of real estate and other property with a countable or significant value, within three months of their appointment (NM Stat § 45-3-706).
• Hire an appraiser to determine the fair market value of any assets that have a value which may be subject to reasonable doubt (NM Stat § 45-3-707).
• Contract with providers of professional services, such as a financial advisor or Santa Fe probate attorney, to ensure that competent estate management strategies are used.
• Transfer, sell, or modify estate holdings to ensure that adequate funds are available to pay estate costs, debts, devises, and bequests.
• Take all reasonable means to preserve assets that are expected to remain intact so they can be transferred to heirs, per the decedent’s will. If their sale value is needed to pay estate expenses or creditor claims, the PR should exhaust all other means of procuring funds before liquidating or transferring these specific devises and bequests.
• Act in good faith and avoid conflicts of interest.
• Demand payments or assets from fiduciaries and others who owed an obligation to the decedent.
• Provide timely notice if they are unable to continue their duties.
• Defend the estate against claims, contests, and other adversarial litigation, to the extent they believe is reasonably possible or necessary.
• Cooperate with co-representatives, trustees, and other parties who bear responsibilities to enact the decedent’s estate plan.
• Maintain diligent records, including an accounting of estate expenses, transactions, and other relevant matters.
• File the decedent’s final tax return and any missing tax returns, which could include an estate tax return in some cases.

A personal representative may also have other duties and expectations that apply to their unique probate case. If they fail to uphold these responsibilities, they could be held liable for losses to the estate because of a breach of fiduciary duty. 

To perform due diligence and verify that all of your duties have been executed faithfully, you can consult with a Santa Fe probate lawyer for guidance. 

Paying (or Disputing) Creditor Claims With the Help of a Santa Fe Probate Lawyer

Managing creditor claims is one of the most sensitive obligations for the personal representative. They are expected to make reasonable efforts to identify creditors and give them the opportunity to make claims on the estate.

New Mexico statutes propose that the PR can fulfil these duties in part by publishing notice in a “newspaper of general circulation in the county in which the probate proceeding is pending” (NM Stat § 45-3-801). This notice should be published at least once a week for three successive weeks. Claimants then have four months in which to present a claim.

The PR can also send a written notice directly to creditors via mail (or other delivery method), urging them to present a claim within 60 days of the notice’s postmarked date.

After providing notice, creditors have until the later of the two possible deadlines to approach the estate with a claim. If they fail to do so, their claim is “forever barred.”

However, the PR is not obligated to present creditor notification, and they are not liable for a failure to present such notice, per state law. At the same time, they can be held liable if there was a debt that should have been settled and they did not take reasonable efforts to uncover or pay the debt.

The PR can also dispute creditor claims. They may have information showing that the debt was already paid, for example, or the creditor may fail to present adequate proof that the debt existed and remained unpaid before probate began. The PR has the authority to negotiate with creditors, as well, such as by making an offer in compromise with the IRS or requesting an extension on a tax obligation.

In some situations, a personal representative may be facing complaints regarding their decisions from a creditor, an heir, or another party with an interest in the estate. To fulfill their obligations to engage in due diligence and seek necessary guidance, they can refer to a Santa Fe probate lawyer. Their attorney can help them understand the legal facts in play as well as their options for resolving the dispute. By taking these steps, they can reduce their exposure to direct liability, creating evidence of their efforts to avoid causing harm to the estate in the process.

How Does Probate Typically Work in Santa Fe?

There are two main types of probate:

• Informal Probate — Held in the Santa Fe probate court, this expedited process sees the personal representative handling estate administration largely on their own, with minimal court supervision. Estates without legal questions, challenges, or issues to resolve generally qualify for this quicker and less intense procedure.
• Formal Probate — Held in the First Judicial District court, this version of probate is required when there are disputes or substantial matters of fact to resolve. Common reasons that formal probate could be required include a will contest, an insolvent estate, or a will that needs to be reviewed and interpreted by the court.

Most probate cases can qualify for informal probate. However, these estates may still present challenges to the personal representative. For example, the personal representative may need to evaluate a creditor claim that they find dubious. Or, they may need to transfer the title of a property to their name before it can be legally transferred to the intended heir.

If you have any complicating factors or think you need to file for formal probate, it can be highly beneficial for you to work with an experienced Santa Fe probate lawyer. Resources provided by the state even directly recommend hiring an attorney when you face a dispute, have legal questions, or need to handle complicated executor responsibilities like a property transfer.

You can also contact the estate planning lawyer in New Mexico that the decedent used to create their will and other plans. They may be able to provide insights and assist you with executing the decedent’s carefully crafted strategy.

Steps of Probate in Santa Fe

Most probate cases will use the following process for estate settlement:

• Application to probate a will and appoint a personal representative — Someone representing the estate submits their probate application along with a copy of the decedent’s will (if one is available). The applicant also requests to be appointed as the estate’s personal representative.
• Court approval and appointment of a personal representative — The court approves the application to probate a will and appoints the personal representative. They then issue letters testamentary, giving the personal representative the authority to directly handle estate assets and administration duties.
• PR notifies the appropriate parties — The personal representative sends notice of their appointment, along with a copy of the will, to all heirs and interested parties within 30 days of receiving letters testamentary. 
• Creditor notification — The personal representative reviews the estate’s known creditors and decides whether to directly send a mailed notice or publish a public notice in a “newspaper of general circulation” for three weeks. They can also do both or neither, depending on the situation and their approach to estate administration.
• Estate inventory and asset valuation — The personal representative must perform a complete inventory of all estate assets and debts within 90 days. They should also take reasonable efforts to determine a value for the assets using professional appraisers and other relevant services when necessary. This inventory does not need to be filed with the court but should be made available to heirs and other interested parties upon request.
• Family and personal property allowances — If the decedent has a surviving spouse or any surviving children, then the personal representative must pay a $30,000 family allowance and $15,000 personal property allowance to the survivors (unless the decedent specifically waived this requirement in their will).
• Estate administration expenses — The next priority after the family allowance is paid is for the estate to cover its non-creditor expenses and administrative costs. Common expenses include property maintenance costs, probate fees, compensation for the personal representative, and professional providers of probate services, including appraisers and attorneys.
• Creditor claims — After estate administrative expenses are dealt with, the personal representative can pay off verified creditor claims. They can dispute claims, as well, if they feel that the claim’s details are not accurate or do not reflect a legitimate debt obligation.
• Administrative accounting — Once all creditor claims are resolved, the personal representative must prepare a final accounting of expenses, including paid claims. This accounting must be sent to the estate’s heirs and to any party that had filed a demand for notice.
• Asset distributions to heirs — Heirs can finally receive their assets once the personal representative is confident that all other expenses have been paid. If the PR did not furnish a public or direct notice for creditors, the court recommends that they wait until a full year has passed since the death of the decedent before making distributions.
• Probate is closed — The final step of probate is for the personal representative to submit a verified statement to the court, which attests that all estate obligations have been handled. Once this form is accepted, probate is closed, the estate is dissolved, and the PR no longer has authority.

Handling Will Contests and Disputes

Will validation is considered a procedural matter during informal probate. However, if a party has evidence that a will is invalid, they can present it during a formal hearing. Their complaint may advance to a jury or bench trial.

Possible reasons for contesting a will include:

• Invalid execution
• Lack of testamentary capacity
• Undue influence
• Fraud, misrepresentation, or duress
• The decedent intended to probate a different will

A claimant could also have other reasons for entering probate litigation. They could be challenging the ownership of an asset the decedent claimed as their own. Or, they could ask the court to interpret the will.

To resolve these situations, the case must be heard in a district court. Reach out to a Santa Fe probate law firm to receive tailored guidance on how to prepare for the case, including what legal strategies are available and how to best uphold your duties as the personal representative.

Reach Out to Our Santa Fe Probate Law Firm for Guidance

New Mexico Financial Law is an established estate planning law firm in New Mexico. We can assist you with probate as well as trust administration and other estate-related matters. Our goal is to always help the decedent’s family members and loved ones obtain the most positive results possible. 

With our assistance, you can uncover strategies that account for the unique characteristics of the estate in question. Our lawyers are available to assist with managing disputes, resolving claims, and making the right choice for the given circumstances. Schedule your appointment with an experienced Santa Fe probate attorney today by calling us at (505) 503-1637 or contacting us online.