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

Probate Court Jurisdiction
The probate court may:

• Accept informal probate cases (Sections 45-3-301 through 311) and may:
  • Admit wills to informal probate; and
  • Informally appoint a personal representative;
• Appoint a special administrator in an informal proceeding (Section 45-3-614);
• Review the reasonableness of fees charged by the personal representative or anyone employed by the personal representative, including attorneys (Section 45-3-721 does not appear to limit this power only to district courts, but it should happen rarely in probate court);
• Appoint a successor personal representative, when the original personal representative dies or resigns (Sections 45-3-609, -610).

Note: the district court may also do the above things. The probate court has what is known as “concurrent jurisdiction” with the district court to preside over informal probate matters. This means that a person can file an informal probate in either probate court or district court. Section 45-1-302.1

Practical Tip: If the probate judge is out of town, incapacitated, or otherwise away from the court, any district court judge from your county can sign orders on your behalf. Section 34-7-11.

Exclusive District Court Jurisdiction
Only the district court has jurisdiction over:

• Formal probate proceedings, including formal closings;
• Supervised administrations;
• Estates of missing and protected persons;
• Protection of incapacitated persons and minors (including guardianships and conservatorships); and
• Trusts (but see discussion of “pourover wills” in section titled “Wills—Valid or Not”).

Only the district court can:

• Approve the sale or encumbrance of property to the personal representative, his spouse, agent, or attorney (Section 45-3-713(A)(2));
• Appoint someone without the highest priority to serve as personal representative (Section 45-3-203(E));
• Make a formal determination as to the validity of a will;
• Consider admitting a copy of a will (Section 45-3-402(A)(1), (B)); this requires a formal probate proceeding;
• Preside over a trial in a contested probate matter (Sections 45-3-406, 407);
• Hear a “petition for allowance” of a disputed creditor’s claim (Section 45-3-806(A)(C));
• Remove a personal representative for cause (Section 45-3-611);
• Open a probate case more than three years after death when a will exists (Section 45-3-108(A)(4)(5));
• Enter an order restraining a personal representative from acting (Section 45-3-607);
• Make a specific determination of heirship;
• Appoint a personal representative in a limited capacity;
• Preside over guardianship and/or conservatorship cases, Sections 45-1-302A and 45-5-101B.

Domicile
Domicile is important in determining venue, i.e., is the case being filed in the correct court? Venue is discussed next. “Domicile” is a person's usual and permanent place of abode. Questions that help determine a person’s domicile include:

• Where is the person registered to vote?
• Is this their permanent address?
• Where is their vehicle registered?
• From what state is their driver’s license issued?
• Is this the place they intend to return to, even if they currently reside elsewhere?
• From which state do they file their income taxes?
• Where does the person consider his or her permanent place of abode?

Ways for the probate judge to check domicile include:

• Does will say decedent is domiciled in your county (it may not if the will was written long ago or when testator lived in another state)?
• Does death certificate say decedent lived in your county?
• Do initial Application and death certificate match re: domicile?

Practical Tip: If there's a conflict between what the Application and death certificate indicate about the decedent's domicile, call the Applicant or attorney and ask them to explain any discrepancies.

Venue
“Venue” means the place where the case should be filed. Which county’s probate court or which district court does one use when someone dies?

Section 45-3-201 governs venue. Venue for the first informal testacy or appointment proceedings after a decedent's death is:
(1) in the county where the decedent had his domicile at the time of his death; or
(2) if the decedent was not domiciled in New Mexico, in any county where property of the decedent was located at the time of his death. (“Property” can be interpreted to mean real or personal property.)

Examples
Example 1 X dies domiciled in Bernalillo County. All of his property is located in Bernalillo County. Where do you file the Application for Appointment of Personal Representative?
Answer 1 According to Section 45-3-201(A)(1), the personal representative must open the case in Bernalillo County Probate Court or Second Judicial District Court.

Example 2 X dies domiciled in Bernalillo County. He owns real property in Taos County. No other property requires a probate. Where do you file the Application for Appointment of Personal Representative?
Answer 2 According to Section 45-3-201(A)(1), the personal representative must open the case in Bernalillo County Probate Court or Second Judicial District Court, and then file a Notice of Administration, Section 45-1-404, in Taos County. Some attorneys or applicants will argue that the personal representative can open the case directly in Taos County, but the law on venue does not support this!

Example 3 X dies domiciled in Durango, Colorado. All of X’s property passes outside of probate, except for property he owns in Socorro County. Where do you file the Application for Appointment of Personal Representative?
Answer 3 According to Section 45-3-201(A)(2), the personal representative opens the case in the county where the property is located. Therefore, the case may be opened in the Socorro County Probate Court or the Seventh Judicial District Court.

Example 4 X, who is domiciled in California, dies without a will. X’s estate requires a California probate, which has already been opened there. But X also owns a piece of real property in Albuquerque, New Mexico. What must the personal representative do?
Answer 4 X’s Californian personal representative has three options. Pursuant to Section 45-4-204, the personal representative can file a “Proof of Authority” in Bernalillo County’s Probate Court or Second Judicial District Court, including 1) authenticated copies of the California appointment, 2) any official bond that has been given; and 3) a statement of the domiciliary foreign personal representative’s address. The personal representative could open an informal probate, but would need to modify the language in the Application to indicate that another probate had already been opened. See Sections 45-3-301(A)(4), 45-3-301(B)(1), 45-3-303(D)(E), 45-3-308(C). The personal representative could also initiate a formal ancillary proceeding in the district court, pursuant to Section 45-4-207.