Probate: Introduction

Probate is a Court proceeding to pass a deceased person’s (decedent’s) property (also called assets or estate) to the heirs or devisees.

Technically, heirs are the people who would inherit the estate if there were no will; devisees are what the recipients of an estate are called when they are named in a decedent’s will. A person can be both an heir and a devisee.

A decedent may own real property (houses, land, ranches, timber and mineral interests still attached to the ground, etc.) or personal property. Personal property includes items like bank accounts, stock accounts, retirement accounts, insurance policies, annuities, and royalties. These are items of intangible personal property. Furniture, guns, jewelry, artwork, vehicles, and other household items are tangible personal property.

Both real property and personal property may be probated in probate court.

Not all of a decedent’s assets need a probate. See section titled When a Probate is Required.

Intestate means dying without a valid will. Testate means dying with a valid will.

Both intestate and testate estates may be probated in probate court.

A large part of the probate judge’s job is to make sure the pleadings (paperwork submitted to the Court) are complete and accurate under New Mexico law. To do so, probate judges must be familiar with topics such as jurisdiction, venue, domicile, the how-to's of handling pleadings, and other legal issues. Since many probate judges are not attorneys, this basic training manual will give you an overview of common issues that may come before you. You are always free, however, to call a district court judge, another probate judge, or attorney if you encounter a case, question, or situation that you do not know the answer to or you feel uncomfortable with.

You will read references to “Section 45-__-__” throughout this manual. These refer to Sections of New Mexico Statutes Annotated (NMSA) 1978. Chapter 45, Pamphlet 67 is the Uniform Probate Code that governs probates. This manual omits the “NMSA 1978” part of the statute cite for ease of reading. All probate judges should have the entire Probate Code, 1995 Replacement Pamphlet (244 pages) and current supplement. A 2002 supplement is now available. If you need a copy of the Uniform Probate Code, contact the New Mexico Compilation Commission, PO Box 15549, Santa Fe NM 87506; (505) 827-4821.

Acceptance is the notarized statement where the applicant agrees to undertake the duties of personal representative of the estate, and abide by the laws of New Mexico.

Administration of an Estate is the process of managing and settling the estate of a deceased person. This usually involves five steps:
a) giving notice of the administration of the estate;
b) collecting the assets of an estate;
c) paying the valid debts of an estate and expenses of administration;
d) paying any taxes owed; and
e) distributing the remainder of the estate to those who are entitled to it.

Affidavit of Successor in Interest or Small Estate Affidavit is a sworn, notarized statement, created pursuant to Section 45-3-1201, which is used to collect assets of a small estate, without going through the probate process. Some financial institutions will not accept the affidavit; then, it may be easier for the person to open a probate. The affidavit cannot be used to transfer title to real property. The requirements for the affidavit (under Section 45-3-1201) are that:
1) the value of the entire (probatable) estate, less liens and encumbrances, does not exceed $30,000.00;
2) it has been more than 30 days since the person has died;
3) no probate is filed or pending in any jurisdiction; and,
4) the person submitting the affidavit is the person entitled to transfer of the asset.
The person or entity transferring property based on the affidavit is released from liability as if they had dealt with a duly appointed personal representative of the estate, see Section 45-3-1202.

Affidavit of Surviving Spouse is a sworn, notarized statement created pursuant to Section 45-3-1205, and is used to transfer title of a marital home that is community property, but is held as sole property or as tenants in common, to a surviving spouse without the need for a probate. This affidavit is recorded in the county clerk's office where the property is located, and must be accompanied by the will of the decedent, if any, a copy of the deed to the subject property, and an original death certificate. This affidavit cannot be done prior to six months after the death, must include statements as to the payment of debts and tax and has restrictions as to value of the property. Also called Homestead Affidavit.

Ancillary Probate is a full probate proceeding that is opened in New Mexico when a probate proceeding has already been opened in the state where the decedent was domiciled. This requires the filing of authenticated copies of certain documents from the original probate proceeding along with the paperwork normally required for an informal probate proceeding, see Sections 45-3-303(D), 45-4-207. Also see Proof of Authority. If a probate was opened in a formal proceeding in the original jurisdiction, a formal proceeding may also be required in New Mexico.

Applicant is the person who makes a written application to the probate court for an informal probate or appointment, see Section 45-1-201(2).

Application is the written request to the probate court for an informal probate or appointment. For more information, see Section 45-1-201(2).

Assets are the decedent's property. Also called Estate.

Authentication is a triple certification. In probate courts, the county clerk first certifies that the copies attached are true and correct copies of the documents on file with the court. The probate judge then certifies that the county clerk has the authority to act in his/her capacity. The county clerk then certifies that the probate judge has the authority to act in his/her capacity. Some states call this an Exemplification.

Beneficiary is a person who is given a gift by a will or another governing instrument. The probate code and the forms use the word Devisee when referring to a will, which means the same thing.

Beneficiary Designation is a designation on an insurance policy, bank account, transfer on death deed, etc. regarding who receives the property after death of the owner. This designation takes precedence over any terms set out in a will.

Bond is a financial security provided to the court by the personal representative and/or a bonding company to ensure that the personal representative of the estate faithfully does the job of personal representative. A bond is usually not required in an informal probate proceeding. However, a bond may be required if the will requires it, or if a person with an interest in the estate asks the court to require it and the court orders that a bond be posted. For more information, see Sections 45-3-603 to 45-3-606.

Certification is an attestation by the Court Clerk (or Deputy Clerk) that a copy of
a document is a true and correct copy of the document on file with the Court. Certification of Letters usually also states that the document remains in full force and effect. Many financial institutions require that a certification be "current" (i.e. within 30-90 days of the issue date depending on the financial institution)

Claim is a claim against the estate of the decedent, including those for debts of the decedent that arise before or after the death of the decedent, including the last medical bills and the funeral costs. The time period during which a claim can be made against the estate can be shortened from the statutory time limit of one year from the death of the decedent to two (2) months after actual notice or the publication of a Notice to Creditors. Actual notice to known or reasonably ascertainable creditors is required. (See Step 3 of Probate Form 4B-012 NMRA for more information) See also Probate Form 4B-302 NMRA. Also see Sections 45-1-201(A)(6),
45-3-801, 45-3-802 and 45-3-803. Also see Section 45-3-805 for priority for payment of claims.

Claimant is the person or entity making a claim against the decedent’s estate.

Codicil is an amendment to a will. The testator must be at least 18 and of sound mind to make a codicil. To be valid, a codicil must be executed (signed and witnessed) the same way as a will.

Creditor is a person or entity to whom a debt is owed by the decedent. The decedent's estate is the debtor. Normally, a creditor has one (1) year from the death of the decedent to file a claim against the estate, see Section 45-3-803(A)(1). Once a known creditor is given actual notice of the appointment of the personal representative (Probate Form 4B-301), the creditor has two (2) months to file a claim against the estate (45-3-801(A), 45-3-803(A)(2)). An unknown creditor has two months after the first publication of the Notice to Creditors, (Probate Form 4B-302 NMRA), to file a claim against the estate (45-3-801(B), 45-3-803(A)(2)).

Decedent is the person who has died and whose will is being probated or whose estate is being administered.

Descendant is the child, grandchild, great-grandchild, etc. of a decedent. For more information, see Section 45-1-201(8); also see "Issue" and "Heirs."

Demand for Notice is a written document filed in the court where the probate has been filed, or in district court of the county where they would be pending if commenced. The document must state the name of the decedent, the nature of the filing person's interest in the decedent's estate and that person's address. A personal representative filing an action in probate court is required to ask the district court clerk for that county if any person has filed a demand for notice relating to the decedent's estate. If a demand for notice has been filed with the district court, the personal representative is required to send a copy of everything filed with the court, including every order the judge signs, to the person who has demanded notice. Any interested person can also file a demand for noticewith the probate court after an estate has been filed with the court. After such demand has been filed, no order or filing to which the demand relates, shall be made or accepted without notice as prescribed in Section 45-1-401. For more information, see Section 45-3-204.

Devise, when used as a noun, is a gift of real property (land) or personal property (other assets) given by a will. When used as a verb, devise means to give a gift of real or personal property. For more information, see Section 45-1-201(9).

Devisee means a person or entity named in a will to receive assets of an estate. Also see beneficiary. For more information, see §45-1-201(10).

Disclaimer is a written statement where an heir or devisee declines to accept an asset of the estate. This statement must be filed with the court in certain circumstances and provided to the personal representative of the estate. If real property is involved, the disclaimer may also need to be filed with the county clerk's office where the property is located. This is generally done for tax purposes.

Distributee is any person who receives assets from the estate of the decedent, other than as a creditor or purchaser. For more information, see Section 45-1-201(11).

Docket when used as a noun is the Court's case files. When used as a verb, docketing is the process of entering the case and subsequent pleadings into the court's case log.

Docket Fee is the Thirty Dollar ($30.00) fee for filing a case with the probate court. This fee is statutory (meaning it is set by state law), see Section 34-7-14 A.

Domicile is a person's usual and permanent place of abode. Evidence of domicile includes registering to vote, using the address as a permanent address, etc. It is the place the person intends to return to, even when currently residing elsewhere.

Duties of a Personal Representative are those things that a personal representative is required to do under the probate code, as well as any other responsibilities he/she may have to the heirs of the estate as a "fiduciary." See Sections 45-3-705 through 45-3-721 and Sections 45-3-306 and 45-3-310.

Estate is the property of the decedent that is subject to the New Mexico Uniform Probate Code, Chapter 45 NMSA 1978. For the purposes of probate, an estate generally does not include things that pass automatically to a listed beneficiary, such as land held as joint tenants, life insurance proceeds, payable on death accounts or retirement benefits that have a beneficiary designation. For more information, see Section 45-1-201(12). This is not the same as the taxable or gross estate, which includes all assets owned by the decedent at the time of his or her death.

Fiduciary is a person or entity, who acts primarily for another's benefit in matters connected with that duty. A fiduciary is held to the highest degree of good faith in performing his or her duties. A personal representative is a fiduciary. See Section 45-1-201(14) for a list of who are considered to be fiduciaries.

Filing Fee is the Thirty Dollar ($30.00) fee for filing a case with the probate court. Also called Docket Fee.

Formal Probate is a court proceeding to probate a will and/or appoint a personal representative of an estate. Formal probates are started by filing a Petition with notice to interested persons required to be given at least 14 days prior to the hearing before a judge for the appointment of the personal representative. Formal probates may only be filed in district court (see Sections 45-3-401 through 45-3-414).

Gross Estate is the entire estate of the deceased person, no matter how the assets are titled, and includes the total value of the decedent's assets at the time of death, without any deductions.

Heirs are those persons who are entitled to inherit the estate of the decedent under the "laws of intestate succession." This usually includes the surviving spouse, children, and, if any of them are deceased, their heirs. Heirs are always entitled to notice in probate proceedings, even if a will excludes them from inheriting, although they can decline notice by filing a written Waiver of Notice with the court. For information on priority among heirs, see Sections 45-2-102 to 45-2-108.

Homestead Affidavit is an affidavit used to transfer title to a marital home, which is community property, to a surviving spouse without the need for a probate. For more information, see Affidavit of Surviving Spouse and Section 45-3-1205.

Informal Probate is a court proceeding to probate a will and/or appoint a personal representative of an estate. Informal probates are started by filing an Application with no notice to interested persons required prior to the appointment of the personal representative. No hearing is held before a judge to start an informal probate, which may be filed in probate court or district court (see Sections 45-3-301 through 45-3-311).

Intangible Personal Property includes items like bank accounts, stock accounts, retirement accounts, insurance policies, annuities, and royalties.

Interested Person is an heir or devisee or any other person having a right to, or a claim against, a deceased person's estate. Creditors and the state, in certain circumstances, are interested persons.

Intestate is having died:
(a) without a will;
(b) without a valid will; or
(c) with an incomplete will.

Issue is all descendants, of all generations, of a deceased person.

Jurisdiction is the authority for a court to act on a matter. Probate courts are courts of "limited jurisdiction," and only have the authority to act over informal probate/appointment proceedings.

Letters is the document issued by the court, which gives the personal representative the authority to act on behalf of the estate. Letters Testamentary are issued in a testate case; Letters of Administration are issued in an intestate case. There are also Letters of Special Administration (for the appointment of a Special Administrator, Letters of Successor Personal Representative, etc.).

Notarization is the attestation by a Notary Public that a document was signed under oath and that the person whose signature appears on the document is that person. Notaries in New Mexico must be authorized by the Secretary of State to act in this capacity. To notarize is the act of the notary attesting to the signature and affixing the notary’s signature and seal to the document. See Sections 14-14-1 through 11 for further information on notarial acts.

Notice or giving notice is a written announcement to persons entitled to know what has transpired or will transpire in a case. When personal representatives comply with notice requirements, they give interested persons information about what is happening in the case, and protect the estate (and themselves) from claims that proper procedures were not followed. Generally, notice should be sent to:
(a) all the heirs or devisees of an estate;
(b) persons who have or may have an interest in the estate of the decedent;
(c) anyone who asks for notice; and,
(d) anyone who has filed a demand for notice.

Order is the document signed by the judge making findings that the requirements of the probate code have been met and entering a will into probate and/or appointing a personal representative. The Order usually also stipulates that letters be issued "upon qualification and acceptance." It is not the Order that gives the personal representative the authority to act, but the issuance of the Letters. A probate judge may also need to sign orders concerning other matters that arise in the case.

Personal Representative is the person appointed by the court to administer the estate of the decedent by giving notice of his/her appointment, paying claims of the estate and then distributing the estate according to the will or to the heirs if there is no will. A Personal Representative appointed in an informal proceeding generally has the authority to do almost anything the decedent could have done with his/her property during his/her lifetime, see Section 45-3-715. This person is sometimes called an executor/executrix or administrator.

Personal Property is all property that is not land, real estate or real property. Some examples are bank accounts, stocks, bonds, insurance policies, pension plans, jewelry, furniture and motor vehicles.

Personal Representative’s Deed is a deed from the personal representative transferring real property to the person(s) entitled to receive it under a will or the laws of intestacy or to a person (or entity) which has purchased the property from the estate. The deed needs to be recorded with the County Clerk's office in the county where the property is located. A copy may also be filed with the probate court.

Pleading is a document filed with the court that requests some sort of action from the court.

Power of Attorney is a signed document that authorizes another person on someone's behalf. A power of attorney expires upon the death of the person who granted the power of attorney. The fact that a person had power of attorney does not give that person priority for appointment as personal representative.

Practicing Law Without a License is providing legal advice to someone or preparing legal documents or pleadings for them without being authorized by the state to act in that capacity. Court personnel need to be careful about making sure they are only providing information and not legal advice.

Pro Se is the Latin phrase for acting without an attorney.

Probate technically is the court procedure by which a will is proved to be valid or invalid. Common usage of this term now means all matters relating to the administration of an estate.

Probate Code is the body of law within the New Mexico statutes that governs the estates of deceased persons. The Probate Code also deals with the administration of trusts and the protection of minors and persons under disability, but probate courts do not have jurisdiction (authority) to act in these matters. The New Mexico Probate Code is based upon the Uniform Probate Code--a sort of model system that is used, at least in part, in 18 states.
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Probate Estate is that part of a deceased person's estate that is governed by the provisions of the Probate Code. It does not generally include property held in joint tenancy, or assets with named beneficiaries, such as insurance policies, payable on death accounts, etc.

Proof of Authority is documentation filed with the court showing that a person has been appointed by a court in another state to act on behalf of the estate of a deceased person. Proof of authority does not involve the opening of a full probate (although the person filing the proof pays the usual filing fee) and does not involve the issuance of Letters. Filing the proof of authority with the probate court gives a personal representative appointed in another state the authority to act in New Mexico, see Section 45-4-204. However, depending on the degree of authority needed, an Ancillary Proceeding may be required.

Real Property includes land, houses, farms, ranches, leases, mineral, water and timber rights.

Revoked, when used with these forms, refers to a will or other document that the decedent has canceled. If a will is revoked, it has no effect.

Seal means a notary seal or stamp, seal of the Court, etc., which proves the authenticity of a document.

Small Estate Affidavit is the affidavit used to collect personal property of the decedent when a probate is not necessary and the value of the estate is worth less than $30,000.00. For requirements see Sections 45-3-1201 and 45-3-1202. Also called Affidavit of Successor in Interest, defined above.

Statute of Limitation is a law that sets a time limit for starting a case. Certain civil claims must be filed within three or four years, depending on the law that governs the claim. In general, probate cases must be filed no more than three years after decedent’s death (but see Section 45-3-108 for certain exceptions to this three-year limit).

Tangible Personal Property includes items such as furniture, guns, jewelry, artwork, vehicles, and other household items.

Testate is having a valid will.

Testator is someone making, or who has made, a will, or someone who dies leaving a valid will.

Testatrix is a female testator, although this term is no longer used in the Uniform Probate Code.

Uniform Probate Code for our purposes, is the New Mexico Statutes Annotated (laws) governing probates; also known as Chapter 45, Pamphlet 67 (always be sure you also have the most recent supplement to the Probate Code!).

Unrevoked, when used in these forms, refers to a will or other document that has not been invalidated or canceled.

Venue is the place where the case should be filed. Generally, a probate is either filed in the probate court or the district court in the county where the decedent died or, if the decedent did not live in New Mexico, in the probate court or the district court in the county where the decedent owned property. For more information, see Section 45-3-201.
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Verification is a formal written declaration made in the presence of an authorized person, including a notary, where one swears to the truth of the statements made in the preceding document.

Will is a document that provides for the distribution of the assets of a person's estate upon death. A will also typically designates a personal representative and can appoint a guardian for minor children. Certain formalities must be followed when executing the will in order for the will to be considered valid. A will is sometimes referred to as "Last Will and Testament.” For more information, see Sections 45-1-201(53) and 45-2-502.

Wrongful Death Act is the section of New Mexico's statutes that governs the procedures one must follow when filing a claim for wrongful death. In New Mexico, a personal representative is the only one with the authority to file a wrongful death claim on behalf of the estate of a deceased person. However, the distribution of any proceeds from the wrongful death claim is not governed by the probate code, but by the terms of the Wrongful Death Act. See Section 41-2-3.