Albuquerque Intestate Succession Lawyers
If you have recently experienced the death of a loved one who resided in Albuquerque and that loved one may not have had a valid will, then you may be involved in an intestate succession case. Intestate succession refers to a set of rules that applies when there is no valid will. These rules dictate who inherits the assets of the estate in the absence of a will or other instructions.
Intestate succession cases may involve a decedent who died without any sort of will. There may also be a situation where the will(s) available may not be valid, or there is no way to determine which will is the original.
An intestate succession case involves many important legal questions. For one, it may not be clear who should be designated as the personal representative of the estate. For another, someone may be trying to assert that there is, in fact, a valid form of a will that means intestate succession does not apply. There are also concerns that may be raised by family members and other possible devisees (heirs).
Resolving these matters is rarely easy, and it often requires professional legal help. New Mexico Financial & Family Law can provide you with seasoned legal representation and guidance during the process. Whether you are a loved one concerned about properly administrating your passed relative’s estate or you are someone who considers themself a rightful heir to an estate’s assets, going through the intestate succession process can be a lot to manage on your own. We are here to provide advice, guidance, and legal advocacy every step of the way.
Call (505) 503-1637 or contact us online to schedule a confidential case review and consultation today.
What Happens When There Is No Will When Someone Dies in Albuquerque?
There are two possible scenarios for an intestate succession case after a person’s death in Albuquerque:
- There is, without a doubt, no will available because the decedent did not attempt to draft one prior to their death. This scenario is common when there is a death of someone under 65 or when the death was sudden.
- There are documents that could serve as a will, but there are concerns that there is no valid will or that there are competing versions with no clear original will.
In scenario #1, your case may still be handled through the Bernalillo County Probate Process for intestate estates. The case may be probated, and once the family allowance, estate administration costs, and any creditor claims are resolved, then the estate will be distributed according to the laws of intestate successions, outlined below.
In scenario #2, where there is a question as to whether there is a valid will, then the case will likely be handled instead in the Second District Court of New Mexico. Typically, the court will expect the designated personal representative of the estate to determine a legally acceptable means of deciding whether or not there is a valid will. In rare cases, the court may directly intervene and make a ruling on whether there is a valid will or whether intestate succession applies. But generally, the court prefers for the estate administrator to come to the final decision, which saves both the state and the private parties involved time, money, and effort.
In both cases, the input of a seasoned Albuquerque intestate succession attorney may be needed. Reach out to New Mexico Financial & Family Law for legal assistance or for representation in order to handle your case and seek the best outcome available.
Who Is Designated as the Personal Representative of the Estate When Someone Dies Intestate in Albuquerque?
In approximately 99% of scenarios, someone directly related to the decedent or who had a strong fiduciary relationship with the decedent during their life steps up and volunteers to petition to be recognized as the personal representative. If the person has valid standing, the court will not hesitate to grant them personal representative status.
In some cases, especially where no one else volunteers, the court will allow a creditor who was owed a debt by the decedent to act as the personal representative and to guide the case through probate.
However, there are rare cases where several people volunteer at once, and there is a contest to prove who is the most valid. Again, the court may make a final ruling recognizing one of these individuals, but it will generally request that all parties come to a consensus that does not require court intervention. It may be possible for two or more parties to be recognized as co-representatives, but these situations are rare, as they may inevitably turn into a power struggle between the designated parties.
Generally speaking, it is best for the family, friends, and other close associates of the decedent to meet and discuss the matter and decide on the individual best-suited for the task. Ideally, this individual will have a close relationship with the decedent, allowing the court to recognize them as an “appropriate” designate. The person should also be trustworthy and able to serve in the capacity of a fiduciary to the estate, meaning they are able to carry out their duties with respect to the estate itself and to those who would inherit its property by intestate means.
When Is Someone Considered Intestate After a Death in Albuquerque?
Intestate succession in New Mexico refers to a situation where the state decides who will inherit property based on existing laws. Simply put: if someone dies, and they do not provide a legitimate will, then their estate will transfer to the next person in the line of intestate succession. Property not mentioned in the will may also pass to the next heir, according to intestate succession rules.
Since most individuals would like to see their property divided amongst friends, family, and other beneficiaries in the event of their death, intestate succession should be seen as a consequence of poor estate planning. Everyone leaves something behind when they die, and if they don’t want the court to give the entirety of it to one individual or a handful of individuals, then they have a responsibility to draft a will and engage in estate planning.
Knowing about intestate succession is also a key component of understanding estate law and how to form a legal strategy in the event of your death. Certain assets do not apply to intestate succession rules, for instance, such as accounts transferable upon death, property held in trust, or life insurance benefits.
Work with an intestate succession attorney familiar with New Mexico law to seek the ideal outcome in the event of your death. New Mexico Financial & Family Law can be here for you to assist with planning, drafting the necessary documents, and understanding how the law might affect your intended wishes. We can also provide assistance to families struggling to understand inheritance and intestate succession laws.
What is intestate succession, and when does it apply?
The word “intestate” means that someone died without having a last will and testament, otherwise known as a will.
Without any legal document describing the decedent’s wishes to guide them, the courts will grant property to the surviving heir at the top of the line in intestate succession. This typically means the spouse, who will inherit everything unless there is a will or other legal document specifying otherwise. If there is no spouse but surviving children, they will split the inheritance evenly. There are also other family members who could inherit if there are no surviving children; you can see more about who is in line for intestate succession in New Mexico below.
Note that intestate succession may occur if there is a will but it fails to meet the minimum requirements for validity. In order for a will to be valid in the state of New Mexico, it must meet the following criteria:
- The testator (person drafting their will) must be at least 18 years of age
- The testator must be of sound mind
- The document must be signed by the testator, or it may be signed by someone else in their conscious presence, according to their direction
- There must be at least two witnesses to the signing of the will, and these witnesses must also apply their signature
- The will must exist in a written form
- New Mexico does not have limitations on beneficiaries
If a will fails to mention certain property and there is a legal question of who should inherit it, then the state will typically go by the rules of intestate succession to grant this property to the next surviving heir.
Who inherits, according to New Mexico’s rules for intestate succession?
When there is no will, New Mexico distributes a decedent’s property based on heirship:
- Surviving spouse and children — In this situation, the spouse receives all communal property and a quarter of the decedent’s separate property. The remaining separate property is split among surviving children.
- Surviving spouse and no children — Everything goes to the spouse.
- Surviving children and no spouse — The children receive everything.
- Parents and no children or spouse — Everything goes to the parents
- Siblings and no spouse, children, or parents — The siblings inherit everything.
Under New Mexico’s survivorship period, a person must be alive 120 hours longer than you to be eligible to inherit your estate.
Property exempt from intestate succession
Any property that is not considered part of the decedent’s estate or that lies outside of the legal powers of the will is not affected by intestate succession rules.
Common examples include:
- Property transferred to a living trust
- Payable-on-death bank accounts
- Transfer-on-death account securities
- Real estate held by transfer-on-death deed
- Life insurance proceeds (go to named beneficiaries)
- IRA, 401(k), or other retirement account funds
- Property owned with the decedent through joint tenancy
A will can exclude people from intestate succession
In some situations, a will may name someone who is ineligible to receive property through intestate succession. This may seem unusual, but it is technically possible for a will to not name any beneficiaries and to instead simply name people who are excluded from inheriting their property. A more likely scenario is that, in the event, the wishes of the will cannot be carried out, the property described would go to the next heir according to intestate succession. For example, if someone was named as the beneficiary for a car the decedent owned, but that beneficiary is dead, then the car would normally be transferred according to intestate succession rules.
How to avoid intestate succession
If you have intentions as to how your property should be distributed when you die — as most of us do — then the best course is to draft a legitimate will. Remember that any time you wish to change the will, you must do so by creating an amendment to the will, known as a codicil. This document must be signed, witnessed, and executed according to the same legal rules as a valid will.
Trust formation is another option for avoiding intestate succession. Any property held in a living trust will be distributed to the named beneficiary or beneficiaries upon your death. This arrangement allows you to avoid having these assets go through a probate proceeding. It also allows you to create certain rules for distribution, such as setting aside money for grandchildren who have yet to be born.
If you are a family member of someone who recently died, and the probate court is saying that there is not a valid will, then you must be able to assert some sort of claim or ownership to a specific property. Otherwise, all property contained in the decedent’s estate will pass to their surviving heirs according to intestate succession rules. In this situation, it is important to speak to a New Mexico intestate succession lawyer as soon as possible in order to explore your available legal options.
Work with experienced intestate succession lawyers in Albuquerque
Whether you have questions about intestate succession or are trying to avoid it, New Mexico Financial & Family Law is available for legal counsel. We have decades of experience assisting individuals with aspects of estate planning, and we have represented family members, estates, and trusts during legal proceedings of all types.
Let us help you achieve your goals and attain a better understanding of New Mexico inheritance and estate planning laws. Schedule your no-obligation consultation appointment when you call (505) 886-9606 or contact us online.