If you’re a Farmington family mourning the loss of a loved one, you shouldn’t have to endure a complicated and stressful process like probate by yourself. By working with a Farmington probate lawyer, you can get professional assistance through every step of the procedure.
Hiring a Farmington probate attorney can make the process go much more quickly and easily. You can rely on their attorney’s deep knowledge and familiarity with probate to avoid some of the most common mistakes. Not only that, but your attorney’s familiarity with the law and probate means you can have guidance and representation when there are issues like a will contest, a dubious creditor claim, or a legal dispute against the estate.
When you are ready to receive assistance through the probate process, New Mexico Financial & Estate Planning Attorneys is here to help. Call our Farmington probate law firm at (505) 503-1637 or contact us online to schedule a no-obligation case review.
Probate is a legal process that gives an executor the legal authority to settle all of the final affairs of someone who has recently passed. This deceased party is referred to as the “decedent.” All of their property they left behind is referred to as their “estate.”
Because of their role, the executor has sole responsibility for making sure that the estate clears probate. Executor duties for estate administration include:
In addition, the executor, legally referred to as the “personal representative” in New Mexico, is responsible for carrying out other instructions laid out in the will. These can include instructions for guardianship, forming a testamentary trust, and other potential obligations. In some cases, they may be responsible for coordinating with a trustee to ensure that trust administration activities align with the language set forth in the will.
The entire process of probating a will in New Mexico takes four to six months, on average, according to the New Mexico State Bar Foundation. However, if the estate could owe unpaid debts, it may be prudent for the estate representative to wait a year or longer before closing probate, in some cases.
For some estates, probate can be a simple process. But even then, the personal representative has many cumbersome duties, per statutory law.
The personal representative is accountable to all heirs and other claimants. They have a fiduciary duty to act in the best interests of the estate at all times. If anyone wants to allege that the personal representative failed in their duties, the personal representative then has to account for their actions and defend them. There is the possibility that someone could try to hold them for actions they did not know or feel were improper.
Suppose there is a contest over the will, inheritance disputes, or another challenge affecting the estate. In that case, the personal representative is legally responsible for defending the estate to protect its value for the sake of beneficiaries and other claimants.
A layperson may lack the legal knowledge or personal capabilities to handle things like major challenges to the estate. They may even encounter difficulty with parts of probate that seemed easy on the surface, such as estate assets evaluation. An heir or creditor may dispute the value they come up with, and then the personal representative must justify that number.
Tasks like transferring property can be even more complicated since the personal representative likely needs to transfer the property to themselves/the estate first before making a final transfer to the named beneficiary.
Because of all of these responsibilities and possible complications, it is often in the best interests of the representative, and, more importantly, the estate itself, to hire a Farmington probate lawyer. Appointing an attorney can provide the executor with the experience and resources needed to handle all of their expected duties.
Your Farmington probate attorney can, for example, help you perform a complete inventory of the estate’s assets and debts. They can help you locate hard-to-find heirs or creditors. Most importantly, they can help ensure that every action taken is legally defensible and adequately accounted for. When these services are rendered by an experienced New Mexico probate law firm, they can prevent mismanagement, address weak claims or contests, and otherwise help the representative fulfill their duties to preserve the estate’s value.
One thing worth noting is that, as the estate’s representative, you can use available assets from the estate to help with its management. This can include reasonable attorney fees and other expenses so that the estate can pay for its own representation.
When a decedent dies without a will, this is known as dying intestate. State laws (NM Stat §§ 45-2-102; 45-2-103) determine who is supposed to inherit the estate in these cases. The estate administrator is then responsible for identifying the appropriate party (or parties) and making distributions to them.
Intestate succession laws provide that the following party (or category of party) inherits the entire estate. If there are multiple individuals within a category, they must split the estate equally among them.
Following the rules of intestate succession can be easy in cases where there are immediate family members who survive the decedent. But in other cases, the administrator may need help identifying the appropriate parties, contacting them, and facilitating a transfer of property, as obligated under the law. A Farmington probate lawyer can assist with this process and ensure that you, as the administrator, perform all reasonable and necessary due diligence to identify the parties who would be appropriate to receive the estate.
Technically speaking, anyone can file for probate within 5 days to three years of the decedent’s death. Per New Mexico’s application for informal probate form, priority for applying to open probate is given to the following parties:
If any of these parties do not come forward within 45 days, a creditor to the decedent or another “interested person” can apply to open probate instead.
Once the application for probate is accepted, the court then appoints a personal representative. Priority is given to the person named as first choice in the decedent’s will, followed by any “backup” or contingency choices listed, if the first choice is unable to, or does not wish to, serve.
If the will did not nominate a representative, or if none of the named choices are available, preference is then given to a surviving spouse, followed by other heirs listed in the will.
If none of these parties can be located or they are otherwise unable to serve as personal representative, a creditor or other interested party can request the appointment.
You can reach out to a Farmington probate lawyer for guidance on who should be the personal representative. They can assist with applying if you are an interested party who was not explicitly named in the decedent’s will.
In some cases, the value of the estate will be depleted before all creditors can be paid. When this happens, heirs are not entitled to receive shares of the estate, as creditors must be paid first.
However, if there is a surviving spouse or dependent children, then they are entitled to receive a family allowance of $30,000 before creditor claims are paid (NM Stat § 45-2-402). The surviving spouse is also entitled to receive at least $15,000 in a personal property allowance, which should consist of non-real property owned by the decedent, including vehicles, furniture, clothing, etc.
If creditor claims would deplete the entire value of the estate, the personal representative is obligated to pay all creditors in an equal category of priority pro rata. All remaining creditors will be unable to recover the debt, and probate is closed.
Estates with significant creditor claims can pose a substantial challenge to a personal representative. They can refer to an attorney from an experienced Farmington probate law firm to get guidance on how to identify who should be paid and how much.
The personal representative also has the right to try to refute specific claims. For example, they can request that the creditor submit additional debt documentation before they can determine if the claim must be paid. In some cases, a creditor may be willing to accept a settlement, as well. However, creditors must be paid in order of priority, so the personal representative is legally obligated to resolve as many debts as they can without showing preferential treatment.
Sometimes there is property remaining in the estate after all other distributions have been made to heirs. The personal representative must then select an appropriate party to receive the remainder of the property. In most cases, this transfer is given according to the rules of intestate succession, but other rules may apply, depending on the scenario. Refer to a Farmington probate lawyer to get recommendations tailored to your unique situation.
No. Certain assets owned by the decedent may pass outside of probate in the following situations:
In addition, an estate valued at $50,000 or less and that does not contain real property (i.e., a house) can transfer property using an “Affidavit of Successor in Interest” if 30 days have passed and probate has not been filed.
Yes, the personal representative is allowed to use funds from the estate to cover reasonable and necessary costs. That includes minor administration expenses, such as the $30 probate application fee and the costs of making photocopies of needed documents. They can also use funds to appoint a lawyer from a Farmington probate law firm to assist them.
However, the personal representative cannot use any estate funds for their personal benefit or any non-estate-related business. They are responsible for supplying an accounting to all heirs and other interested parties. Therefore, they should be prudent when charging expenses and take measures to avoid excess costs, if at all possible.
If you need assistance with probate court in Farmington, contact New Mexico Financial & Estate Planning Attorneys. A Farmington estate planning lawyer from our firm can assist with probate as well as other aspects of wills and trusts. We are happy to provide answers to family members, heirs, creditors, and others with questions about an estate.
For over a decade, our firm has been providing legal advice, personalized assistance, and comfort to families during some of the most challenging days of their lives. Handling probate can be deceptively complex, and the actions you take could subject you or the estate to legal challenges if you don’t follow the law to the letter. During the process, the courts are not allowed to provide advice or direct assistance, even for simple tasks like completing a form, so it is often beneficial to consult with a Farmington estate planning attorney for guidance.
We’re ready and eager to assist you in any way we can, so call us at (505) 503-1637 or contact us online to schedule a no-obligation case review today.
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