Roswell Probate Lawyer

Managing probate can be difficult. Whether you’re the personal representative of an estate or someone who wants to make probate easier on their loved ones when they pass, there are many legal factors and strategies to be aware of. A Roswell probate lawyer can help you anticipate the workload ahead of you and uncover strategies to get through probate as smoothly as possible.

The personal representative of an estate has a huge legal responsibility. They not only have to try to preserve the value of the estate for its beneficiaries, but they must also navigate creditor claims, taxes, and other concerns. In some cases, they may have to grapple with will contests or adversarial claims against the estate. They may also have difficulty understanding the rules of intestate succession in New Mexico.

If you want assistance managing your executor duties in Roswell or preparing your loved ones for the probate process in New Mexico more generally, our Roswell probate law firm is here for you. New Mexico Financial Law can assist you with estate administration in Roswell, or we can guide you through common probate avoidance strategies as part of estate planning.

Schedule a no-obligation consultation with an experienced Roswell probate attorney today when you call our offices at (505) 503-1637 or contact us online.

Will I Have to Go to Probate Court in Roswell, New Mexico?

Probate is the legal process of verifying a will and overseeing a personal representative (also known as an executor) as they manage the final affairs of the person who has passed away (known as the decedent).

Most cases can qualify for simple or informal probate. That means the majority of affairs can be handled with minimal direct interaction with the probate court in Chaves County.

If you are someone who has been named as the personal representative of an estate, you are strongly encouraged to file the original copy of the decedent’s will directly with the court. After that, you may need to attend an informal hearing before you can be officially appointed as the personal representative. In many cases, once you submit the will and receive approval to handle the affairs of the estate, you do not need to appear in court unless there is a challenge, a complaint, or some other complicated issue related to the estate.

If you are an heir to an estate, a creditor with a claim against an estate, or another interested party who has filed a demand for notice, you should receive a notice stating the time and place of a probate hearing. You are allowed to appear during that hearing if you have any concerns or other matters to address. It is recommended that you prepare for this hearing appearance with the help of a Roswell probate lawyer. Your lawyer can help you review the available details of the estate and create a formal complaint or declaration that can be admitted into the record.

If you do not have any concerns as one of these parties, then you should not need to appear in court for probate. It is possible that you could be called upon as a witness if you have information related to the will, the decedent, or their estate preparations, if there are any legal questions, will contests, or adversarial claims. The personal representative should inform you well in advance of these appearances to give you time to prepare.

Do I Need a Roswell Probate Attorney?

An attorney can be helpful when analyzing an estate, inventorying its assets, reviewing a will, and coming up with a strategy for dealing with expenses and debts. A Roswell probate lawyer is particularly recommended when you face possible will contests, estate disputes, questionable creditor claims, or an estate that seems like it can’t cover all of its expenses and gifts. 

Refer to the sections below for more information, and then reach out to an experienced probate law firm in Roswell for guidance if you have questions about your particular estate.

What Does the Probate Timeline Look Like in New Mexico?

Most probates qualify for informal probate. This means that the personal representative handles most of the steps of probate outside of court. The personal representative will start by petitioning the court to receive the authority to handle the estate. Once they receive this authority, they will handle most estate-related interactions outside of court and directly with the relevant party.

The informal probate process for Chaves County is outlined below. If you have any questions about any of these steps or need other information in relation to an ongoing case, reach out to a Roswell probate lawyer.

1. Locate the will, identify heirs, and determine the appropriate court in which to file for probate.
2. Submit the will to the Clerk of the Court, along with an application for informal probate, which includes an application for the appointment as personal representative.
3. The Court issues an Order to Informally Probate the Will and Appointment of the Personal Representative. Once you formally accept the appointment, you are issued Letters Testamentary by the Clerk of the Court.
4. Within 30 days of your appointment, issue notice of your appointment, the order to probate the will, and a copy of the will to all heirs named in the will, as well as anyone who has filed a demand for notice.
5. Review all known creditors of the estate and send them direct notice of probate, or issue a public notice, or do both.
6. Perform a complete inventory and valuation of all estate assets within 90 days of your appointment. Also, determine the exact value of any known debts. These inventories do not have to be filed with the court, but they should be furnished upon request to estate beneficiaries.
7. Pay the $30,000 family allowance if the decedent had a surviving spouse and/or surviving dependents. If a family allowance is paid to a spouse, you should also ensure that they receive at least $15,000 worth of personal estate assets as their personal property allowance.
8. Pay all relevant and reasonable estate expenses and estate administration costs. This can include compensation for your own services as personal representative, and it can cover the costs of legal representation from a Roswell probate lawyer.
9. Pay all valid creditor claims. Formally dispute any claims you feel are not valid, such as if there is a record that they had already been paid by the decedent prior to their death. NOTE: You can distribute property to heirs once you are confident that all claims against the estate have been resolved. If you are unsure, you may want to wait until at least a year has passed since the death of the decedent to safely rule out any lingering claims. Refer to a Roswell probate lawyer for guidance if you need help performing appropriate due diligence.
10. Once all estate administration costs, creditor claims, and other expenses have been paid, you can distribute the remaining estate property to heirs.
11. After the property has been fully distributed, review and sign the Verified Closing Statement of the Personal Representative, closing probate. 

Once probate is closed, you lose your authority to manage estate affairs as a personal representative. In cases where you failed to fully uphold your executor duties in Roswell probate court, you could potentially be held liable for certain unpaid claims from heirs, creditors, or other parties (NM Stat § 45-3-808). Accordingly, make sure to carefully review the details of the estate and ensure that you have a full accounting available for all activities. You can perform a thorough review and due diligence with the aid of a Roswell probate attorney. 

When Can Probate Be Filed?

Probate can be filed at any time at least five days (120 hours) after the death of the decedent. Estates are only eligible for informal probate for up to three years after the decedent’s passing. 

If probate proceedings have not been initiated within this time, and you are an interested party, such as an heir of or a creditor to the decedent, you may still be able to initiate a formal probate. Reach out to a Roswell probate lawyer for more information and guidance on how you may be able to still get probate started.

Who Can Be Personal Representative of a Roswell Estate?

A probate judge or district judge appoints a personal representative based on their qualifications, including their relationship to the decedent. The court prioritizes the appointment of a person nominated by the decedent to serve as their estate’s representative in their will. 

If the decedent did not leave a will, or if they neglected to state their preferences in their will, then the court has priority for appointing the surviving spouse or another heir listed in the will.

If none of these parties come forward within 45 days of the decedent’s death, another interested party can submit an application to probate the will and be appointed as personal representative. However, the court will first reach out to the other parties who are higher in priority (i.e., the nominated representative, the surviving spouse, and known heirs) and require that they consent to the appointment of the other party before they can be considered. 

In other words, a person with a higher priority must refuse their appointment and agree that the party lower in priority than them would be appropriate for probate proceedings to continue.

What Are the Probate Fees for Roswell, New Mexico?

Probate fees in New Mexico are set by the jurisdictional court where probate is filed. The fee for filing for informal probate in Chaves County is $30. The court can provide a complete packet of the needed forms for $5. You can request copies of documents, like the will, for $0.15. Copies of certificates are $1.50. These prices are subject to change, so be sure to confirm with the Clerk of the court.

How Can I Provide Notice to Creditors of the Estate?

New Mexico law (NM Stat § 45-3-801) provides that the personal representative can submit notice to creditors individually, declaring their appointment and requesting that they submit a claim within 60 days of receipt of the notice.

The personal representative can also publish notice in a newspaper or “general circulation” in the county where probate is taking place. The notice should be published at least once a week for at least three successive weeks. Creditors receiving public notice have up to four months after the first notice’s publication.

What Happens if an Estate Can’t Pay All Its Debts or Inheritances?

As outlined above, distributions of money and assets are made from the estate in the following order of priority:

1. The family and personal property allowance (only provided to a surviving spouse or surviving dependents)
2. Estate administration expenses, including compensation for the personal representative and any costs of representation from a Roswell probate law firm
3. Verified creditor claims
4. Distributions to heirs

If money runs out at an earlier point, the estate cannot fully distribute property to heirs or pay off debts. The personal representative is required to take all reasonable measures to prevent this from happening, such as by selling off non-liquid assets.

Creditors or heirs not receiving the full extent of what was owed to them may receive what property was available on a pro-rata basis.

Note that some assets held by the decedent may not have formally entered into the estate and, therefore, cannot be considered as part of the estate’s official probated contents. Examples of non-probated estate assets include:

• Accounts balances that are transferred automatically to a recipient using a transfer-on-death or payable-on-death designation
• Assets held in a living trust
• Life insurance policies, retirement accounts, etc., with a named beneficiary
• Community property held jointly with a surviving spouse
• Property titled using a joint tenancy with right of survivorship (JTWROS) deed

In situations where an estate cannot fully cover everything, there is a high risk of adversarial claims or disputes. The personal representative should strongly consider reaching out to a Roswell probate attorney if they determine that the estate could run out of money before honoring all debts, devises, and bequests.

What Happens if There Is a Will Contest?

Will validation in New Mexico probate is conducted on a basic level during informal probate.

When a will is contested, however, probate has to move to district court proceedings so that the will’s validity can be verified. Grounds for contesting a will include:

• A newer, valid will exists.
• The will entered into probate was not validly executed.
• The decedent lacked testamentary capacity, meaning they didn’t have the mental capabilities to fully understand that they were making and signing a will or to fully grasp its contents.
• The decedent only created and signed the entered will as a result of undue influence, duress, misrepresentation, or fraud.

Anyone submitting a will contest has the burden of proof to establish their reasons, along with appropriate evidence. The personal representative is tasked with defending the submitted will.

Will contests can become lengthy and complex. If you are concerned about a contest or are currently facing one as the personal representative of an estate, you can reach out to a New Mexico probate attorney for assistance and representation during your case.

Get Help From Our Experienced Roswell Probate Law Firm

New Mexico Financial Law provides experienced guidance and client-centered probate services, all delivered with the sole intention of making probate easier and less stressful to get through. When you come to our firm, you can expect compassionate and personalized service from a Roswell estate planning lawyer. 

When you are ready to get started, our Roswell probate law firm is ready to help. Get tailored guidance from an experienced probate attorney in Roswell when you call (505) 503-1637 or contact us online to schedule a no-obligation case review.