Las Cruces Contested Probate Lawyer

Contested probate occurs when a party objects to the actions taken — or that are going to be taken — as part of routine probate procedures. These objections can relate to an alleged faulty will, issues with a personal representative’s actions, or an unrecognized right to property, guardianship, or an appointment. In other words, there are many reasons that a contested probate could occur.

The estate’s personal representative is obligated to look into these matters and defend the interests of the estate and its heirs, to the best of their knowledge and abilities. If they want to gain a professional perspective — along with the resources and services offered by someone with experience — they can enlist the help of a Las Cruces contested probate lawyer.

New Mexico Financial & Estate Planning Attorneys has deep experience with probate matters throughout the state. That experience includes cases involving routine procedures as well as will contests, property disputes, and other forms of adversarial litigation. If you are looking for someone who can back you up while taking much of the burden off your shoulders, look no further than our experienced attorney team.

Find out more about how we can assist you and what strategies you have available for moving forward during a confidential, no-obligation consultation. Schedule your appointment to speak with an experienced lawyer today when you call us at (505) 503-1637 or contact us online.

What Types of Cases Can a Las Cruces Contested Probate Attorney Handle?

Probate typically proceeds along a series of precise and relatively straightforward steps.

However, individuals with an interest in the estate can object to this process being carried out on several grounds, including:

• Contested will — The will is allegedly invalid, in part or in full, and therefore should not be used to probate the estate and determine inheritances.
• Contested appointment of personal representative — The individual who applied to be the personal representative (or who has already been appointed) should not be appointed because they are unqualified and/or because someone else should take priority.
• Contested interpretation of the will — Someone might object to a provision (or multiple provisions) of an otherwise valid will. This provision typically relates to the transfer of property to another party, but it can also involve something like a revocation clause, residuary clause, or contingency clause.
• Contested claim on estate property for repayment of debt — Creditors to the estate have the legal right to pursue claims and assert their validity. If the personal representative disallows a claim, the creditor may contest this in the district court.
• Contested property claim — A party might dispute the estate’s ownership interest in a property, such as when their ownership interest was split with another party in such a way that prevents its transfer to an heir.
• Petition to restrain or compel the personal representative — An interested party with cause can seek a court order forcing the personal representative to do something or not do something, depending on the request.
• Petition to supervise or bond the personal representative — An interested party can request that the personal representative’s actions be supervised by the court and/or that they obtain a bond to insure against any mistakes they might make.
• Petition to terminate the personal representative’s appointment — In severe cases, a party who objects strongly to the personal representative’s appropriateness to serve or their specific conduct can request their removal and replacement.
• Petition to appoint a special administrator — A special administrator can be used in cases where the appointment of a personal representative is delayed or contested. This administrator must obtain court approval for each action, and their appointment is temporary, by design.
• Submitting new evidence or information that would change the outcome of probate — In rare cases, the personal representative, the probate court, or others facilitating probate might be operating on incomplete information. The discovery of this information could affect their decision-making or the outcome of the case. For example, a child who was presumed dead could be revealed to be still living, potentially entitling them to a share of the estate.
• Insolvent or abated estates — In cases where estates don’t have enough money to pay all of their debts or gifts, a court review or order may be needed to determine the most appropriate outcome for everyone affected.

New Mexico Financial & Estate Planning Attorneys has handled cases like the above from all sides of the equation. Whether you are a personal representative, an heir, a creditor, or some other interested party in Las Cruces, you have a right to have your voice heard in court. With our guidance and representation, you can gain an understanding of the legal strategies available and seek to work through to achieve your objective.

When Can a Will Be Contested in Las Cruces?

There are several grounds for contesting a will in Las Cruces and throughout the state. These include:

• Improper execution: The will failed to follow New Mexico’s statutory requirements for a valid will, such as by lacking a second witness signature.
• Lack of testamentary capacity: The testator (i.e., the person making the will) was not “of sound mind” and was not mentally competent enough to understand that they were making a will.
• Undue influence: The will only contained the language it did because another party with an unusual relationship to the testator exerted an inappropriate level of influence over them.
• Fraud or misrepresentation: The testator made decisions for their estate based on fraudulent or misrepresented information.
• Duress: The testator only created and executed the submitted will because they were forced to under threats of harm by another party.
• Forgery: The submitted will or its signatures are not genuine.
• Not the correct will: Another will exists that should be used to dispose of the estate instead of the one submitted, because it is more recent or because the submitted will was revoked.

If a will contest is successful, then the next-most recent valid will that exists must be used. If no other valid will exists — as is often the case — then the estate becomes intestate.

Will contests are one of the most consequential types of probate-related litigation. Having a will thrown out can completely upend all of the arrangements the decedent evidently made. Accordingly, the parties involved may wish to consult with an experienced Las Cruces contested probate lawyer to understand the relevant legal matters and proceed judiciously.

When Can a Personal Representative Be Challenged or Removed?

An interested and concerned party with cause can petition the court to have a personal representative’s appointment terminated (NM Stat § 45-3-611).

Cause can include a situation where the personal representative:

• Lied to obtain their appointment
• Ignored a district court order
• Failed to perform or uphold their fiduciary duties
• Mismanaged the estate
• Is otherwise incapable of discharging their duties as expected

The personal representative can defend against their removal by presenting counter-evidence, disputing the evidence presented, or demonstrating that the petitioning party is using flawed or improper legal reasoning.

Removal of a personal representative can have a significant impact on the estate — for better or worse, depending on their abilities, qualifications, and intent. If you are concerned about being removed as a personal representative or someone seeking the removal of one, reach out to our Las Cruces probate attorneys for guidance and assistance.

Who Can Submit a Will Contest, Complaint, or Other Contest Against an Estate?

State laws refer to an “interested person” when describing who may bring forth a claim, will contest, or other form of contest during probate. This term refers to any person who has a vested interest in the outcome of the estate. In other words, if their objections were not heard and their contest was not successful, then they might suffer harm.

Examples of interested persons include:

• Someone named in a will as an heir, personal representative, or guardian
• Someone named in a previous version of a will
• Someone who would have a right to inherit property if the estate were to become intestate (in part or in full)
• A creditor to the estate
• Someone else who might suffer harm if they failed to successfully intervene

The court will consider the appropriateness of the contest and the standing of the interested party. They will then weigh the evidence and legal justifications presented.

The personal representative (or other adversarial party) can dispute the petitioner’s standing, evidence, or legal justification for their contest or claim.

In addition to contested matters, someone may have standing to file a lawsuit directly against a personal representative or estate if either has harmed them in some way. For example, a company that owned property adjacent to estate property may allege that the personal representative negligently failed to address a dangerous condition on the property, such as a dead tree, leading to the destruction of their own property.

Personal representatives, therefore, may have to handle lawsuits on top of contests. Estates are considered a legal entity until Las Cruces probate concludes, which means that the decedent’s actions prior to their death could even become grounds for litigation.

New Mexico Financial & Estate Planning Attorneys can assist you if you find yourself in any of these situations. We help our clients understand complex matters of the law, including ways they can assert their rights and leverage strategies towards the best interests of the estate and its heirs.

Disputed Creditor Claims

Creditor claims against an estate can sometimes be difficult to objectively prove. Accordingly, a personal representative may disallow a claim they feel is illegitimate or that lacks proper evidence.

When a personal representative refuses to pay a debt, the creditor can seek legal recourse. To do so, they must file a petition with the third district court within 60 days after receiving notice of the disallowed claim. The court may then order that the claim be honored, in part or in full. Or they might affirm the personal representative’s right to disallow the claim or only offer partial payment.

If you are unsure of whether a claim is legitimate as a personal representative, you can dispute the claim once the claimant files a petition. Refer to a Las Cruces contested probate lawyer for guidance on the best procedures to follow and the strategies you can use to investigate the claim further and determine its legitimacy.

Abatement of an Estate

When an estate lacks the funds or assets needed to fulfill all of its promised gifts, the personal representative must determine who should receive priority through a process known as abatement.

Per state law (NM Stat § 45-3-902), the estate’s gifts may need to be reduced in the following order of priority:

• Property not disposed of by the will
• Residuary gifts, meaning transfers that would occur after all specific and general devises have been completed
• General gifts
• Specific gifts

The statute also states that “Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.” In other words, each heir receives the same proportion of the estate that they would have under normal circumstances, albeit reduced by the amount necessary for the estate to be able to pay off all gifts.

Abatement can be difficult to sort through, which is a major reason why careful estate planning is recommended. Individuals going through the process should set aside cash for the repayment of debts and administration expenses, for example, and avoid promising the full extent of their estate’s value through specific gifts.

Strategies like these reduce the risk that multiple categories of inheritance are going to be affected. Refer to a Las Cruces estate planning attorney to reduce the risk that abatement will be necessary for your own estate when the time comes.

Protect the Estate and Its Heirs by Hiring a Las Cruces Contested Probate Lawyer

Contested probates can threaten significant delays while costing an estate dearly. It is always in the best interests of the estate to resolve matters quickly while using the full extent of legal tools available.

When you come to New Mexico Financial & Estate Planning Attorneys, we put the full extent of our experience, knowledge, and resources at your disposal. Our goal is to help you explore all options while seeking to swiftly handle contests, disputes, and other forms of litigation. Find out how we can assist you and the estate you are involved with when you call us at (505) 503-1637 or contact us online to schedule a confidential, no-obligation case review.