A “personal representative,” once appointed by the court, has legal authority to act on behalf of a decedent, settling the estate, paying taxes and creditors, and other matters. Personal representatives must be eighteen years of age or older (Section 45-3-203(F)(1)).

Who Has Priority to Serve?
It is the probate judge’s duty to appoint the personal representative who has the highest priority to serve. Section 45-3-203(A) sets out who has priority from first to last:
1. Personal representative named in the will;
2. Surviving spouse who is a devisee named in the will;
3. Other devisees of decedent;
4. Surviving spouse of decedent, when there is no will;
5. Other heirs of decedent, when there is no will (if an heir is missing and that missing heir has equal priority to serve as personal representative, probate court lacks jurisdiction to appoint);
6. Any interested person, such as a creditor or the state, (other than a spouse, devisee or heir) can apply to have any qualified person serve. Creditors who ask to be appointed as personal representative must wait 45 days from decedent’s death (Section 45-3-203(F)(3)). The probate court probably does not have the authority to appoint a creditor as personal representative unless those with higher priority to serve agree. But, if the decedent had no family members, it is possible that the creditor is the one with the highest priority for appointment.

Examples

Example 1: The will names the spouse to serve as personal representative. Spouse is divorced from decedent. Second in line to serve as personal representative in the will is Child A. Who has priority to serve?
Answer 1: Child A, since ex-spouses generally lose their right to serve as personal representative and their inheritance rights, Section 45-2-804.

Example 2: Lori is nominated as personal representative in decedent’s will. She does not want to serve, so asks her friend Tony to serve on her behalf. Who has priority to serve?
Answer 2: Tony does not have priority because a personal representative cannot confer priority onto another nominee, Section 43-3-203(C). If a successor personal representative is named in the decedent’s will, he/she has next highest priority to serve as personal representative. Otherwise, Section 43-3-203(A)(2) says the surviving spouse (if the spouse is a devisee in the will) has next priority. If there is no spouse, then all devisees named in the will have equal priority to serve as personal representative, Section 43-3-203(A)(3).

Example 3: Decedent dies without a will. There are four adult children, all living. Who has priority to serve?
Answer 3: All four have equal priority to serve. All four must concur in the appointment of one of them or someone else in order for the probate court to have jurisdiction.

Example 4: Decedent dies without a will. There are four adult children, two of whom cannot be found. Who has priority to serve?
Answer 4: All four have equal priority. If the other two cannot be found to concur in the appointment of someone, proceed to district court. (Sometimes somebody in the family knows where the missing children or heirs are; they just do not like them or think they deserve an inheritance.)

Example 5: Decedent dies without a will. There is no surviving spouse, but there are four adult children, one of whom has died, leaving two adult grandchildren. Who has priority to serve?
Answer 5: The three living adult children and two adult grandchildren of the deceased child all have equal priority to serve. All must concur in the appointment of someone as personal representative. See Sections 45-3-203(A)(5), 45-1-201(A)(20), 45-2-103(A), and 45-2-106(B).

Example 6: Esperanza is the only child of decedent, who has no will and no spouse. Esperanza is twelve years old. Who has priority to serve?
Answer 6: Esperanza must be 18 to serve, but under Section 45-3-203(C), she (or her guardian) can nominate a qualified person to act as personal representative. If this is not done, then other heirs of decedent have equal priority to serve. Next in line (under Section 45-2-103) are decedent’s parents. If both are alive, both have equal priority.

What if Person With Highest Priority Does Not Want to Serve?
The personal representative with highest priority does not have to agree to serve. He/she has two options under Section 45-3-203(C):

1. The personal representative with highest priority can “nominate a qualified person to act as personal representative and thereby confer his relative priority for appointment to his nominee.” This means the nominee now has the highest priority to serve. This option does not apply to personal representatives named in a will, but does apply to those listed in Section 45-3-203(A)(2) through (5). The do-it-yourself forms do not contain language for this option, so the initial Application form would need to be modified; or

2. A person can “renounce his right to nominate [discussed in 1. above] or to appointment by appropriate writing filed with the court. When two or more persons share equal priority, those of them who do not renounce must concur in nominating another to act for them, or in applying for appointment.” The do-it-yourself forms contain language about “consenting to the appointment,” which others with equal priority to serve as personal representative must sign. ALL people with equal priority must consent to someone serving as personal representative, and if they will not, they must go to district court (Section 45-3-203(E)).

Example 1: John dies with a will. He has three children. His will names his surviving spouse Betty as personal representative. The will names his son Bill as the alternate personal representative. Betty declines to serve. Who has priority to serve as personal representative? Bill, because he is the alternate named in the will and first priority to serve are those nominated in the will. See Sections 45-3-203(A)(C).

Example 2: John dies, but does not have a will. He is a widower with three living children. Who has priority to serve as or nominate a personal representative? All three children have equal priority to serve as personal representative. They can agree on one or more of them serving as personal representative. If they cannot agree on who will serve, the case must be filed in the district court.

Example 3: Same as above, but none of the children are willing to serve as personal representative. They can all nominate another mutually agreeable person to serve as personal representative. If they cannot agree, the case must be filed in the district court.

Example 4: John dies without a will. He is a widower with two living children and one deceased child. The deceased child had two children, one a minor and one an adult. Decedent’s children and the children of the deceased child have equal priority to serve or nominate another. The minor child cannot legally serve as personal representative but may still nominate another (depending on the age of the child, you may want to have the child's guardian sign on his or her behalf). As above, the decedent’s children and adult grandchild (with the concurrence of the minor or his or her guardian) may agree on one or more of them serving as personal representative or may nominate another mutually agreeable person to serve as personal representative. If they cannot agree, the case must be filed in the district court.

Co-Personal Representatives
Sometimes a will names two individuals to serve as co-personal representatives. The will may also provide guidance about whether the signatures of both are required in all instances or in selected transactions. For example, a will might state, “Both signatures are required on court paperwork and on transactions involving over $500.” It is also possible that people with equal priority to serve as personal representative could concur in two people serving as co-personal representatives.

Successor Personal Representative
Sometimes the personal representative appointed by the court dies, resigns, or no longer wishes to serve. Additional paperwork must be submitted to the court asking to have a successor personal representative appointed. If a will exists, hopefully it names a successor personal representative. If no will exists, then the Applicant must follow the Priority of Personal Representative rules, discussed above. Sections 45-3-609, 45-3-610 and 45-3-613 govern successor personal representative appointments. Also, Section 45-3-301(F) contains some language that should appear in the pleading for a successor personal representative.

Resignation by Personal Representative
A personal representative may resign, but the resignation is not effective until a successor personal representative has been appointed and qualified, and the assets delivered to the successor. The personal representative who is resigning has a duty to protect the estate assets and make an accounting to the successor personal representative (Section 45-3-610).

Bond Required of Personal Representative
Most informal probates do not require the personal representative to be bonded, unless the will requires a bond. Sections 45-3-603 through 606 cover bonds.

Limited Appointment of Personal Representative?
On occasion a probate judge is asked to appoint a personal representative for a limited purpose, such as to bring a wrongful death action in district court. A probate judge does not have authority to limit a personal representative’s powers or duties. Once a personal representative is appointed under the Uniform Probate Code, that person must perform all duties required under the Probate Code. If someone insists you should make a limited appointment, send him or her to district court.

Duties of Personal Representatives
Section 45-3-715 sets out the many duties and responsibilities of personal representatives. Within ten days of appointment, Section 45-3-705 requires the personal representative to give Notice to Heirs and Devisees of the Estate (and to anyone who has demanded notice). Within three months of appointment, the personal representative must give Notice to Creditors (Section 45-3-801) and prepare an Inventory of the estate (Section 45-3-706). The Personal Representative may also want to publish a Notice to Creditors in order to limit the time an unknown creditor has to file a claim against the estate. (This cannot be used to avoid giving notice to known or reasonably ascertainable creditors—they must be given actual notice). The personal representative must also pay valid creditor claims, pay decedent’s federal and state income and estate taxes, pay the New Mexico family and personal property allowances due (if any), prepare an accounting, and distribute the estate assets properly. The personal representative must follow the provisions of the will, if any, or intestate laws, if no will exists. It is not the court’s job, however to monitor whether the personal representative acts properly. If this type of monitoring is needed, the estate must be handled in a supervised administration in district court.