“Intestate succession” happens when someone dies without a will, fails to fully account for all of their estate property in a will, or has their will declared inadmissible (in part or in full) after a successful will contest.
In any of these situations, knowing what to do next can be very difficult. The laws of intestate succession can quickly get complicated. This is especially true in cases when the decedent (i.e., the person who died) did not leave any immediate or obvious survivors. Those looking to handle the estate may need assistance from a Santa Fe intestate succession lawyer to understand the applicable laws — and how they can get things sorted out.
Whether you are someone looking to settle an estate, get answers about inheritances, or avoid intestacy by creating a will, New Mexico Financial & Estate Planning Attorneys can help. We have decades of collective experience handling probate matters and assisting our clients with all areas of estate law.
Get in touch with an attorney who can help you understand your situation and assist with finding the best path forward when you call (505) 503-1637 or contact us online to schedule a confidential, no-obligation case review.
The rules of intestate succession apply any time property isn’t disposed of (meaning legally handled) through a will or other legal means. This can occur because of a few different scenarios:
Often, the person looking for answers on intestate succession was someone who was close to the decedent.
Other times, though, the decedent may not have had anyone close to them at the time of their death. In these cases, an “interested party” — potentially including a creditor — may need to take over and handle the estate, figuring out who is entitled to the decedent’s property along the way.
If you find yourself in any of these situations, New Mexico Financial & Estate Planning Attorneys is available to provide you with information, answers to your questions, and guidance on how to proceed. You can receive our assistance regardless of whether you knew the decedent closely or if you are someone looking to settle an estate out of a moral, legal, or financial obligation.
We are also able to help you understand what might happen if a will contest were to succeed, leaving an estate intestate. This information could help you plan for possible scenarios that would impact the final arrangements for an estate.
Read on to learn more about what happens during intestate succession and how you can plan accordingly, based on the situation at hand.
The main purpose of intestate succession laws is to ensure that someone’s estate property goes to their closest surviving relatives.
If they have direct surviving relatives, such as a spouse or children, then the rules can be relatively simple to understand and follow. However, the more distant these relatives are, the more complicated it will be to determine what happens.
To make things as easy as possible, we have broken down what might happen in progressive order, from the least to the most complicated scenarios.
New Mexico law (NM Stat § 45-2-102) states that, when someone passes and leaves behind a spouse but no children, grandchildren, or other descendants, the surviving spouse inherits the entire estate.
State laws for intestate succession involving anyone other than a surviving spouse (NM Stat § 45-2-103) provide that a person’s direct descendants (either born to them, adopted, or presumed to be theirs by state law) hold the highest priority for inheriting their property.
If the decedent has surviving children, then the children split everything equally among them. If a child who would inherit has died, their children (i.e., the decedent’s grandchildren) can inherit a portion of the estate. This also applies to great-grandchildren, great-great-grandchildren, etc.
Note that the law states that inheritances involving descendants are assigned “by representation.” This phrasing means that each category of heir must split everything evenly, according to the category they represent.
As an example, let’s say someone died intestate with $300,000 in their estate. If they had three children, but only one survives, the children who have passed make their children eligible instead. However, these grandchildren do not effectively inherit their parent’s share. Instead, they inherit the share that would go to all grandchildren.
In this hypothetical case, let’s suppose that one deceased child had four children (AKA four of the decedent’s grandchildren) while the other only had one child. The surviving child of the decedent would inherit ⅓ of the estate ($100,000) while the grandchildren would split the remaining ⅔ of the estate ($200,000) evenly between the five of them, resulting in $40,000 each.
The example above differs from a “per stirpes” scenario, where the four-grandchild family would be forced to split the parent’s share evenly among them (receiving $25,000 each) while the one-grandchild family would produce a full $100,000 inheritance.
Note, too, that a child conceived by the decedent but not yet born would be eligible to receive a portion of the estate if they are born before probate is closed and survive for a minimum of 120 hours.
Understanding these arrangements can be difficult, even for legal professionals. Be sure to consult a Santa Fe intestate succession lawyer when you encounter a complicated scenario like the one above.
In situations where both a spouse and descendants survive someone, the spouse inherits all of the couple’s community property. They also acquire ¼ of the decedent’s separate property.
The decedent’s descendants then split the remaining ¾ of the separate property by representation.
In a situation where the decedent left no surviving spouse nor surviving descendants, their closest next-of-kin stands to inherit the estate, in the following order of priority.
If the decedent left no direct relatives but had a spouse who died while they were still married, this spouse’s descendants would be eligible to receive the intestate estate on a “by representation” basis.
The most common version of this scenario is that the person who passed was once married to someone who had children from a previous marriage — AKA their step-children. If the spouse passed while the decedent was still married to them, the decedent’s step-children would be eligible to inherit their estate only if all other relatives had passed or could not be located.
To reiterate, these arrangements can be very hard to understand or even properly explain. Fortunately, they tend to arise only rarely. They can also be avoided entirely when someone takes the time to prepare a will with the help of a Santa Fe estate planning lawyer.
If all options to find an eligible heir for an intestate estate have been exhausted, the estate’s contents will “escheat,” meaning they become the state’s property. Fortunately, states and courts will explore every available option to prevent this from happening.
Any eligible heir must survive the decedent by at least 120 hours, or five days.
In cases where someone died without a valid will, an eligible party must petition the court to request an informal appointment as the estate’s personal representative.
The person who requests an appointment must be eligible based on their relationship to the decedent or because they have an interest in the estate. They are chosen from among the following categories, in order of priority:
If a surviving spouse is available but does not wish to serve as the personal representative, an heir must first obtain consent from the spouse before being named. They must also receive consent from other heirs who have equal priority to them before serving.
An interested person, such as a creditor, can only submit a petition to serve as a personal representative if 45 days have passed since the date of the decedent’s death and no other direct survivors/heirs are available (or willing) to serve.
Note that these appointments could result in a contest among applicants. In these cases, the court must intervene and select the most qualified candidate. Their decision is made based on the applicant’s relationship to the decedent and their perceived ability to fulfill the duties of a personal representative.
To get assistance with requesting an appointment or determining who should be appointed, you can discuss your case with a Santa Fe probate lawyer.
To nominate a guardian for a minor child, the decedent must have included their choice in a will — or a similarly produced legal document, one that was witnessed by at least two competent individuals.
In cases where both parents of the child have passed, and both failed to name a preferred guardian, the court will have to choose an appropriate guardian. They will prioritize selecting “the person having the minor’s care or the minor’s nearest adult relative” (NM Stat § 45-5-202).
When minors inherit from any estate, including one that was intestate, they are ineligible to receive their inheritance until they reach the age of 18.
In the meantime, the court will assign a custodian to look after the child’s inheritance. This custodian can be the same person as the child’s guardian or a different person, depending on what the court feels is in the best interests of the child.
The custodian is required to maintain the value of the funds, to the extent possible, only using them for the direct benefit of the child when necessary.
As you can see, intestate succession not only forces everyone’s hand, but it can result in confusion, legal battles, and myriad complexities.
Untangling it all could significantly diminish the value of an estate while creating delays. Not to mention: it completely negates anything the decedent would have wanted when deciding who inherits what.
Avoiding this situation requires a will. Per state law (NM Stat § 45-2-502), the will must be:
Anyone who creates a will should also keep it up to date. Otherwise, their asset situation might change, resulting in some property being unaccounted for. In these situations, any property not specifically disposed of by the will or encompassed in something like a residuary clause becomes intestate.
As Santa Fe intestate succession lawyers, we understand that this information can be too little, too late for those dealing with the aftermath of an estate. Nevertheless, you can take these precautions yourself to ensure that your loved ones will not bear the aftermath of a confusing and stressful intestacy situation.
Intestacy can create legal confusion and lengthy probate procedures. Sometimes, multiple claimants will appear, alleging that they have a right to some share of the estate. Even in cases where there is a will, parties who stand to benefit by right of intestate succession may try to have the will declared invalid.
At New Mexico Financial & Estate Planning Attorneys, we are prepared to help everyone who could be involved. That can mean relatives, creditors, and those who are left trying to pick up the pieces while making sense of confusing state laws. Get the help and guidance you need from experienced professionals, and find a path forward to getting the estate settled with our help. Call us today at (505) 503-1637 or contact us online to schedule your no-obligation appointment and get started.
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