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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) 503-1637 or contact us online to schedule a no-obligation case review and consultation today.

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 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 New Mexico 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) 503-1637 or contact us online today.

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