Albuquerque Formal Probate Attorneys
Formal probate is a court process with the goal of providing legal authority to act on behalf of the estate of someone who has died. It also has a secondary goal of ensuring that all claims upon the estate are managed appropriately by the representative, according to the letter of the law.
Not every death requires formal probate. Estates with no outside claims of creditors will be eligible for simplified probate. Estates valued at $50,000 or less can avoid probate altogether through an affidavit-based property transfer procedure.
If you are a loved one or a representative of a decedent’s estate, New Mexico Financial & Family Law can provide you with legal guidance and assistance throughout all probate processes. Some probates can become complicated, and individuals may not be aware of all of their legal options — and obligations.
Speak with an experienced formal probate attorney near you to learn more about your legal rights and requirements according to probate law. Call (505) 886-9606 or contact us online to schedule a no-obligation case review and consultation today.
Filing for Formal Probate in Albuquerque
Formal probate proceedings for estates of individuals who resided in Albuquerque may be conducted at the Bernalillo County Probate Court offices. However, if the decedent passed more than three years ago or passed without a will (intestate), then the probate case may need to be conducted through the Second Judicial District of New Mexico court system. The district court may also be more appropriate for complex cases, such as when it is unclear if creditors/disputors have a valid claim or where the petitioner for the personal representative of the estate may lack standing.
It may be best to refer to an attorney for advice on where and how to file for probate when there are lingering questions. The procedures you undergo will affect the options you have when trying to navigate towards a specific outcome, so consider the matter carefully.
Am I Required to File for Formal Probate?
Formal probate is required in cases where the estate’s estimated value exceeds $50,000 and/or when there are claims or disputing petitions that must be resolved through a formal court proceeding.
One way to avoid formal probate is to ensure that your loved one’s estate is well managed prior to their death. Real property assets, like homes, can be given transfer-upon-death deeds. Bank accounts, securities, and other such holdings can similarly be designated to transfer upon death. To ensure the value of the estate remains below the $50,000 threshold, the individual planning their estate can place the majority of their assets in a living trust. A living trust can dictate conditions and be managed through rules similar to a will, but it also applies a fiduciary responsibility to the trustee while helping the estate avoid having to undergo formal probate.
What Do I Do If Someone Is Contesting the Will or Has a Petition to Dispute?
Many conflicts that arise after the death of a loved one relate to feelings of not getting one’s due. In other words, people who file to contest the will or dispute its terms most often want something from the estate — not just the satisfaction of having a judge rule in their favor.
In truth, judges may attempt to avoid conducting a formal ruling on such matters when it can be avoided. It is advised by legal professionals and encouraged by the court system to attempt to resolve such matters outside of court. Options can include providing a settlement or offering to “buy out” a fair equivalent value of the assets desired.
In any case, the important thing is to consider the separate duties of the personal representative of the applicable estate. The representative has a responsibility to the estate itself to resolve any such claims expeditiously while preserving the entire value of the estate to the extent possible. In other words, address such matters from a professional rather than a personal angle.
An Albuquerque formal probate attorney can help you address such issues as they arise for your case. Since courts are not legally allowed to offer advice, you will be made aware of the legal options available, the pros/cons of each, and which strategies may best help you seek your idealized outcome.
What Can I Do If Creditor Claims or Other Costs Are Eating Into Assets That Were Supposed to Go to Heirs?
There is an order of priority for distributing assets from any estate that undergoes probate. First, the family allowance and personal property allowances must be paid to the appropriate surviving family member (if any). Second, the estate’s own reasonable administration costs must be paid, including the cost of probating the will. Third, any outstanding creditor claims and disputes must be resolved.
Settling all of these matters may mean that assets described in the will are not available as originally intended by the testator (the deceased author of the will). In these cases, you may need to liquidate parts of the estate in order to settle all matters. State law permits you to invalidate certain parts of the will, providing that the losses to the estate are made equitable and fair to all devisees (inheritors) and heirs.
Managing an estate with limited assets is almost always going to result in someone being upset. The duty of the personal representative is to manage the estate in good faith and to the best of their ability while resolving outstanding payments in the order of priority. You will have to consult with an experienced probate attorney in Albuquerque to learn about your specific options and what strategies may be best given your situation.
Timeline for Formal Probate
The official rule in New Mexico is that someone must file for probate within 3 years of the decedent’s death. Individuals must also wait at least 120 hours (5 full days) after the decedent’s death before a personal representative can be paid.
Once probate is open, it will remain open until taxes are paid, all creditors are notified, priority payments like the family allowance are made, all estate assets are distributed, and all remaining third-part claims are settled. Once probate is closed, the individual appointed as personal representative no longer has any power to act on behalf of the decedent’s estate. New claims against the estate are no longer eligible to be raised, either.
Who Will Be Appointed as the Personal Representative of the Estate?
Typically, the decedent’s will names who they wish to be the personal representative for their estate. In the event that there is no will — or the will does not clearly designate a personal representative — then beneficiaries can agree upon who to designate as the personal representative. If the beneficiaries cannot agree, a formal probate proceeding will begin in the district court of the location where the decedent resided.
When necessary, probate will designate a personal representative according to the rules of heirship:
- The decedent’s surviving spouse has first priority.
- If there is no surviving spouse, or the spouse refuses, the children of the decedent have equal priority.
- When no spouse or children exist, the decedent’s parents have priority.
- The decedent’s siblings have equal priority for an appointment when no spouse, children, or parents exist.
- If none of the above-listed people remain, a creditor or other interested person may also serve as a personal representative.
What Obligations Does the Personal Representative Have During Formal Probate?
Unfortunately, the burden of responsibility placed upon the personal representative can be quite high. Depending on the number of claims and the availability of funds within the estate to pay for these claims, probate can become quite complex and confusing for the personal representative to manage. For this reason, the courts often recommend that a personal representative seek legal counsel from attorneys experienced in New Mexico’s formal probate procedure.
According to New Mexico law, the personal representative must fulfill the following duties:
- Provide notice of appointment and a copy of the will to all heirs, devisees, and those who have filed a demand for notice within 30 days of appointment
- Determine if creditors should be notified, and issue personal notice, public notice, or both
- Inventory assets held in the estate, as well as debts. This inventory does not have to be provided to the court, but it must be available upon request.
- Ensure the payment of the $30,000 family allowance and the $15,000 personal property allowance to the appropriate heir
- Pay all costs and expenses of administrating the estate
- Prepare for creditor claims for up to a year after probate is opened; it may be wise to wait to distribute property until this time
- Prepare an accounting of administration of the estate, which must be provided to devisees
- In the event of no will, prepare to distribute assets according to intestate succession rules
- Close probate and settle out the estate once obligations are complete
Make the Process Easier With Formal Probate Service From Experienced Albuquerque Attorneys
Undergoing probate can be stressful, exhausting, and confusing. Heirs may be anxious to receive their promised portion of the estate, and you may have to worry about unexpected creditor claims for up to a year after probate has opened.
Managing all of this can be quite a burden, but you don’t have to do it alone. New Mexico Financial & Family Law can apply our 50+ years of experience to your case, helping you manage probate and make the optimal decisions for your situation. Our priority is making you feel as if you’ve got the best formal probate service and counseling possible. This service can lift the weight from your shoulders and make it easier to return to a normal life after the death of a loved one.
We are here, ready, and waiting to help. Talk to us during a confidential, no-obligation consultation when you call (505) 886-9606 or contact us online today.