A contested probate can occur for many reasons. Most often, disputes arise because of a disagreement between the executor and those closest to the decedent. There may also be disputed creditor claims or questions about the will’s validity. In rarer cases, probate disputes arise because of competing claims on a complex asset or an insolvent estate that can’t fully honor its debts or promised gifts. All of these situations may require a Santa Fe contested probate lawyer to examine the circumstances and prepare a defense on behalf of the estate.
The executor (formally known as the personal representative) has a legal duty under New Mexico law to uphold certain responsibilities. They are tasked with preserving the value of the estate to the extent possible, and they have to honor all gifts described in the will. They also have an obligation to pay off the valid claims and other expenses of the estate. If they fail in these duties, either because of negligence or intentional misconduct, then they could be directly liable for their actions (NM Stat § 45-3-712).
Whether you are a person representing the estate or a party that could have a potential claim against it, New Mexico Financial Law can advise you. Our Santa Fe contested probate attorneys have deep experience with all aspects of estate management, creditor claims, and other probate concerns. Form a strategy to help you succeed in your goals, and understand whether the law could lean in your favor during a no-obligation case review.
Many formal probate cases involve a contested will.
Its validity challenges can be lodged for any of the following alleged reasons:
A will gives the personal representative the authority to dispose of an estate in the manner the decedent dictated. If a will contest is successful, the contesting party can petition the court for an order to probate another valid will, if one exists. For example, if a recent version of a will was created as a product of undue influence, then an older, non-revoked, and validly executed version of a will could potentially be used instead (NM Stat § 45-3-412).
However, if there is no valid version of the will that can be used, the estate is instead declared intestate.
Below, we go over the common reasons for contesting a will. If you are facing a contest as a personal representative or wish to lodge a contest against a will you feel is illegitimate, you can work with a Santa Fe contested probate lawyer to assist you in interpreting the law and providing evidence as to the validity of a will (or a lack thereof).
For a will to be valid in the state of New Mexico (NM Stat § 45-2-502), it must be:
If, for any reason, these formalities of wills have not been met, then the will cannot be used to probate the estate.
Often, the stated reasons for an invalid will involve a will that is unsigned, not properly witnessed, or that bears a forged signature.
When there are allegations of a forged signature on a notarized will, the personal representative is not obligated to call upon either of the witnesses to testify. Instead, the party alleging a forgery must present evidence that the notary’s affidavit was itself fraudulent or that the testator was otherwise subjected to deception or misrepresentation (NM Stat § 45-3-406).
A testator must be of sound mind (NM Stat § 45-2-501), a concept that is often referred to as testamentary capacity. That requirement means that the testator must understand their will, grasp how it affects the disposal of their estate, and that they are signing it intentionally.
If the testator was not fully conscious, under the influence of a mind-altering substance, or suffering from a condition that inhibits the full functioning of their mind (such as dementia or a high fever), then they did not have the capacity to execute a valid will.
A testator cannot be deceived into signing a will, and they must have full knowledge of how the will affects their estate. Otherwise, the will may be invalidated.
Examples of fraud and misrepresentation that could affect the validity of a will include:
Undue influence refers to a situation where someone with a close relationship to the testator manipulated them into making or signing a will that they would have otherwise objected to under normal circumstances.
The person wielding undue influence could be a caretaker who refuses to provide food, water, or medications until the testator signs the will, for example. They could also be someone pretending to be a loyal romantic partner, offering the testator companionship or intimacy in a way that convinces them to go against their prior wishes.
Parties alleging undue influence or duress have the burden of proof to show, with evidence, that the testator would have wanted to enter a different will into probate if they weren’t otherwise manipulated. Evidence of an earlier copy of a will or previously documented estate plans could be sufficient, in some cases, along with relevant evidence demonstrating the suspicious and confidential nature of the relationship between the testator and the influencing party.
Note that there is a presumption of undue influence in certain cases where a testator has a close, confidential relationship with someone who would not normally be close to them. However, a party can still have an understandably close relationship with someone, such as a daughter, but still be a victim of undue influence.
A will contestant can also seek a petition to have a different copy of a will used or to have the will interpreted in a certain way. If, for example, the will included a bequest stating that “all my baseball memorabilia should go to my son, Randy,” Randy might lodge a complaint if the personal representative failed to gift a signed bat as part of the estate.
Contested probate may refer to cases where a party lodges a will contest.
It could also refer to any type of formal probate where there is dissension (i.e., disagreement) between parties on what actions should be taken on behalf of the estate, its creditors, its heirs, and other affected parties.
Examples of possible reasons for probate litigation include:
It is also possible for a broader estate to face claims in connection with a trust, an account transfer, disputed asset ownership, and financial misconduct that technically falls outside the purview of probate. While these issues may be taken up by the court outside of probate, they can still affect an estate and others with an interest in it.
Note that disputing parties have the burden of proof to explain their reasoning and provide evidence of their allegations (NM Stat § 45-3-407).
Estates with disputes and other forms of litigation do not qualify for informal probate. They cannot be handled through the Santa Fe probate court, so probating of the estate must instead be filed in the appropriate district court.
New Mexico Financial Law can provide you with a Santa Fe contested probate lawyer to assist in all of these matters. We have experience working with personal representatives who are managing estates. We have also represented people who want to lodge complaints, claims, and other disputes against an estate.
Many aspects of probate are extremely time sensitive, so make sure to refer to a qualified attorney quickly to ensure that your matter can be handled in the appropriate venue.
Aside from a will contest, a person filing a complaint, claim, or petition against an estate may do so under the following grounds.
The personal representative of the estate is obligated to uphold certain duties (NM Stat § 45-3-703), which include:
Note that many times, disputes arise because of personal feelings, rather than compelling matters of fact. For example, the heirs to an estate may grow suspicious of a personal representative if they feel that the representative is taking too long to handle the estate. They may also feel that the executor gave away too much property to creditors or showed favoritism to a particular heir.
In these situations, the American Bar Association advises that “your best protection is to get good professional advice as early as possible in the process, communicate regularly with the beneficiaries, treat everything with appropriate formalities as if you were not a related party (even if you are), and fully document your actions and decisions.”
The personal representative can exercise due diligence by hiring a Santa Fe contested probate lawyer to ensure that their activities are defensible and in line with their duties. They can often resolve disputes or avoid allegations of a fiduciary duty breach more easily when they proactively communicate with parties involved, maintain transparency, and diligently account for their actions.
Per New Mexico statute § 45-3-611: “Any interested person may petition for removal of a personal representative for cause at any time.”
Examples of cause can include a personal representative who is disobeying court orders, mismanaging the estate, conducting fraud in probating, or otherwise showing a lack of competence.
Should the executor be removed, the court will appoint a successor. This successor may be chosen based on their nomination as a backup by the testator, their relationship to the testator (e.g., a surviving spouse), or other qualifications (NM Stat § 45-3-613).
Creditors should receive direct or public notice from the personal representative in a timely manner (NM Stat § 45-3-801). Creditors then have either four months (if they saw a public notice) or 60 days (if they received a mailed notice) to respond with a claim. They are barred from making a claim after this time elapses.
The personal representative should evaluate claims, such as by investigating their origins and verifying that the claim is legitimate and unpaid. A Santa Fe probate lawyer can assist you with performing this due diligence.
After receiving a claim, the personal representative can dispute it, resolve it partially with a settlement offer, or honor the claim in full.
Note that using a living trust can reduce the risk of creditor claims, since it removes property from the probated estate. Contesting trusts is more difficult for creditors compared to contesting an estate, in most cases.
Sometimes, an estate can’t fully pay off its debts or honor all of the gifts promised to heirs in the will. The personal representative then has an obligation to pay off estate expenses in a particular order of priority (NM Stat § 45-3-805).
In these cases, it is highly advisable to seek representation from a Santa Fe contested probate law firm. An attorney can help you determine which debts or gifts should be paid first, according to the law.
Some assets that would be gifted to heirs or used to pay off estate expenses may be claimed in part or in full by another party. Common examples include a closely-held business or assets co-owned by the decedent.
These matters can fall outside of probate, but they are relevant to estate administration and the personal representative’s duties to preserve the estate’s value. Accordingly, you can seek guidance from a Santa Fe contested probate lawyer to evaluate the veracity of a disputed property claim and determine appropriate relief.
New Mexico Financial Law is a highly experienced Santa Fe contested probate law firm. We are prepared to assist all parties with matters connected to the probating of an estate, as well as a decedent’s non-probated assets.
Estate-related litigation can get complicated quickly. Emotions are also likely to run high. Many times, contesting parties are simply eager to receive validation and feel like they got the due level of respect from their departed loved one.
Without a clear strategy for resolving a dispute, a contested probate can drag on, costing the estate money while diminishing the value that ends up going to heirs.
If you are looking for a reliable Santa Fe contested probate attorney, we are ready to represent you. Get help managing probate or lodging a dispute against an estate when you call our firm at (505) 503-1637 to schedule a no-obligation case review.
CallCall now to schedule your consultation 505.503.1637
Office