An executor — formally called a personal representative (PR) in New Mexico — is responsible for handling estate administration matters during probate. It’s this personal representative’s job to resolve an estate’s remaining debts and expenses before distributing assets to the rightful heir. If an estate has a complaint or other legal action filed against it, the PR has a responsibility to defend the estate to the best of their ability.
Personal representatives also have many other responsibilities to uphold as part of their fiduciary duty towards the estate. They must avoid self-dealing, for example, along with conflicts of interest.
Complying with all of these executor duties while carrying out the required tasks of probate can be complex — sometimes even overwhelming. For that reason, it can be highly beneficial to consult with a New Mexico probate lawyer for assistance. They can help with key steps of the process, or they can guide an executor through probate from start to finish.
Find out more about the duties of a personal representative and what they can do to carry them out faithfully by reading on, then schedule a no-obligation case review to talk to an experienced probate attorney. Call New Mexico Financial Law at (505) 503-1637 or contact us online to schedule your confidential consultation today.
The person who is most likely to be appointed as the personal representative should file an application to open probate in New Mexico. The court can then approve or deny the appointment.
The court will show preference for appointing a person as personal representative in the following order:
If someone tries to “skip” other people when applying for an executor appointment, the court requires the consent of the other parties before they can approve the request.
As part of their application, the personal representative must include:
You must then sign your application and have it notarized before submission.
Once your application has been approved, you will receive letters testamentary and an order to formally probate the estate. These give you permission to begin your formal duties as the personal representative.
You should respond by filing a formal acceptance of your appointment.
Within 10 days of accepting their appointment (depending on the jurisdiction), the PR must notify all heirs to the estate, as well as those who have filed a demand for notice. This notice should include a declaration of their acceptance of the role, a copy of the original will, and a copy of their orders to probate the estate.
Within 30 days of their appointment, the PR should take reasonable efforts to fully identify all assets formerly owned by the decedent, which now make up the probated estate.
To fully uncover all estate property, the executor should search for:
The executor has an obligation to ensure that all estate property is secured and safeguarded. They should take physical possession of the property, if at all possible, and store it in a secure place. They must take reasonable steps to ensure that the property is not damaged or otherwise diminished in value by severe weather, exposure, theft, vandalism, pests, or general negligence.
To ensure that the property is protected against threats, the personal representative can have the property insured. They may also wish to secure a surety bond. They may even be ordered to obtain a bond by a court if there is a reasonable concern or a complaint filed by an interested party (NM Stat § 45-3-604).
The personal representative must perform a full inventory of estate property and document their findings in a way that is easy to review and audit.
An approximate valuation of the assets, individually or as a collective class of assets, must be provided alongside the inventory (NM Stat § 45-3-706).
The PR should hire a professional appraiser who can determine an appropriate and fair market value for “any asset the value of which may be subject to reasonable doubt” (NM Stat § 45-3-707). The cost of these appraisals can be deducted from the estate.
This inventory of assets does not need to be filed with the court, but it should be provided upon request to any interested parties.
As part of probate, the PR is required to pay all outstanding bills, fees, and other expenses of the estate. These expenses can include reasonable compensation for their own services (NM Stat § 45-3-719).
Common estate costs to consider include:
As part of their fiduciary responsibilities, the personal representative should keep a diligent accounting of all expenses. They should also be prepared to justify, with evidence, why a particular expense was necessary for the administration of the estate.
Settling debts and taxes is a key part of probate, and it must occur as the final step before asset distribution.
As part of their duties, the PR should consider sending direct notices to all estate creditors. They can also post a public notice in a local newspaper to give any creditors the opportunity to file a claim against the estate.
Notifying creditors and agencies isn’t legally required (NM Stat § 45-3-801), but it is often highly recommended. A personal representative has a duty to faithfully research, discover, and repay or dispute all creditor claims.
Claims they should seek to discover include:
As part of their duties, the personal representative should file the last year’s income tax return on behalf of the decedent. They may also be required to file an estate tax return under certain circumstances.
Very few estates qualify for estate taxes, however, now that the lifetime exemption amount is nearly $14 million. Even still, the personal representative should look to see if the decedent owed back taxes to state or federal agencies as part of due diligence.
The personal representative has the authority to dispute a claim they feel is non-genuine or that the decedent otherwise would not have been obligated to pay. They can also negotiate with a creditor to offer a partial payment or make other arrangements that can help them avoid paying the debt in full.
A New Mexico probate attorney can assist you with determining the legitimacy of creditor claims and weighing your options for repayment, negotiation, or contesting the claim.
Before distributing assets, the personal representative should compile a complete accounting of all paid estate expenses, taxes, and debts. This is referred to as an “Accounting of Administration.” It should be provided to all heirs and any other parties that have filed a demand for notice.
Assets can then be distributed to all heirs, per the provisions of the decedent’s will. If the decedent died without creating a will — or all known wills cannot be validated for the purposes of disposing of the estate — then the PR has to follow the rules of intestate succession in New Mexico instead (NM Stat § 45-2-101).
For titled property, the personal representative likely has to transfer the property into their own name on behalf of the estate before making a final transfer to the appropriate heir.
If a property is owned jointly with other parties under an arrangement other than joint tenancy with rights of survivorship (JTWROS), then the PR must transfer the decedent’s share of interest using the appropriate procedures.
Re-titling property during probate can be complicated, and there is a high risk for error. Accordingly, you may wish to consult with an experienced probate lawyer in New Mexico who can assist you with the process and help you avoid common mistakes.
Sometimes, the decedent’s property ownership arrangements are not clear. For example, they may have tried to sell or transfer their interest in a property right before they passed, and it could be unclear if the transaction was fully completed.
Other times, a provision of a will can be confusing, lead to multiple interpretations, or appear to contradict another statement.
Legal questions like these must be deferred to the district court rather than the probate court. The personal representative must petition the court for a ruling on the matter. They can consult with a New Mexico probate lawyer for guidance and assistance with the process.
The personal representative has a duty to represent the estate in litigation. Their job is to preserve as much of the estate’s value as possible, which can mean defending against a claim. They may also pursue litigation if they feel it is necessary to secure unencumbered ownership rights and ensure the faithful execution of the will (NM Stat § 45-3-703).
In other words, the personal representative has standing to:
A personal representative has the right to settle a claim, plead no-contest to a complaint, or refuse to otherwise fully defend against adversarial litigation if they feel that doing so is in the best interests of the estate and its heirs.
However, in the absence of such justification, they have an obligation to use all available means to dispute and defend against adversarial claims and contests. Failing to reasonably do so could potentially lead to a finding of fault and liability, especially if the personal representative had a conflict of interest or a bad-faith reason to not fully defend the estate.
In addition to the duties outlined above, a personal representative has a duty to:
You may have other obligations, so refer to a probate attorney to understand what could be expected of you. Your ultimate goal is to fully comply with the will, other estate plans, and laws set by the state and federal governments.
New Mexico Financial Law is a client-focused firm that has provided extensive estate-related assistance and services to individuals across the state. We have experience with estate planning, probate, will contests, estate litigation, and a host of other related matters.
If you need help managing an estate, resolving a dispute, or otherwise making the best decisions on behalf of an estate or its heirs, do not hesitate to give us a call. You can reach us at (505) 503-1637 or contact us online to schedule a confidential, no obligation review at any time.
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