To Docket or Not to Docket?
Some probate judges immediately “docket a new case” by collecting the docket fee and assigning a case number to the estate prior to reviewing the pleadings. These judges argue that a case must be docketed before they have the authority to review it.

Other probate judges review the pleadings submitted to the court prior to docketing the case. If the required elements of the probate code are met, the judge signs the Order and dockets the case. These judges do not want Applicants to pay a filing fee if the case is not in the correct court. It also prevents having several amended versions of the Application in the case file.

Rule of Civil Procedure for the District Courts, 1-005(E), states in part, “The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.” This means you cannot reject a case because of minor errors such as an incorrect court caption or misspelled name.

On the other hand, 45-3-301(A) states, "Every application for informal probate….shall contain the following…", and then sets out the required elements for the application. In addition, “The probate or the district court may decline an application for appointment of personal representative for any reason.” Section 45-3-309. Section 45-3-305 contains similar language regarding declining an application for informal probate of a will for any reason.

No matter which procedure you choose to follow, a probate judge cannot sign the Order appointing the personal representative and/or admitting a will to probate unless all of the substantive requirements (findings) of a probate case are met. Section 45-3-302 says that, “Upon receipt of an application requesting informal probate of a will, the probate or district court, upon making the findings required by Section 45-3-303, shall issue a written statement of informal probate if at least one hundred twenty hours have elapsed since the decedent’s death.” The findings are listed in the Order that you sign. Section 45-3-307 contains similar language.

Another issue to consider is, “Just what documents must be docketed and placed in the file?” Once the case is filed with the court, all pleadings properly submitted for filing need to be docketed. Generally, search requests and cover letters do not need to be placed in the file. However, correspondence (including e-mail) that addresses issues concerning the case should probably be filed so that you have a record of events pertaining to the progress of the case. If you are not sure, you might want to ask yourself, would this help someone understand what happened in this case, and could this be important to the case in the future? Make sure that copies of these communications are sent to all parties involved.

Sequestered Cases
Probate cases are generally public record, open to anyone to view. Occasionally, a probate case may need to be sequestered (kept locked and confidential). This issue can arise in cases involving domestic violence or other safety issues where the identity and location of a personal representative or other interested party needs to be kept confidential. The person seeking to sequester the case should provide a police report, court order, or other evidence of the danger of revealing their identity. The judge must decide whether the safety of the person involved is more important than the public's right to view the case file.

Once the probate judge is convinced that the case should be sequestered, only the following information should appear on the docket sheet:

• Docket Number
• Date of Filing
• Judge's Name
• Payment of Docket Fee, if applicable
• This statement: "Case sequestered. Can only be viewed pursuant to written court order."

The names of the decedent, personal representative, and attorney, if any, should not appear anywhere on the docket sheet or in th epublic record. The case file should be kept in a secure locked cabinet, drawer, or other location. The case files can only be viewed by someone with a written court order from the probate court.

This issue has only arisen once in the Bernalillo County Probate Court and the sequestered status should be used sparingly.

Probate Court Forms
The New Mexico Supreme Court approved do-it-yourself probate court forms for use by the public without the assistance of an attorney. Some attorneys have started to submit these forms as well. Other attorneys continue to submit forms from attorney William Henderson’s New Mexico Probate Manual, or pleadings based upon the requirements set out in the probate code. Any forms that meet the requirements for informal probates in New Mexico may be accepted by the probate court.

Copies of the do-it-yourself forms can be obtained:

• As packets, sold by the probate court for $5 each packet;
• From the internet, you can find them at the
  New Mexico Supreme Court Website
• From the NM Rules Annotated, Volume 1, Probate Court Forms

Proof of Death

How do you know the decedent has died?

• You can take their word for it since they signed the Application under oath.
• You can ask for proof of death, usually a death certificate or letter from the Office of Medical Investigation (OMI).
• The Bernalillo County Probate Court (and other probate courts) now requires death certificates in all probates filed, including cases submitted by attorneys and pro se applicants. As a judge, you have the power to require a death certificate as part of the probate case if you think it wise.

Death Certificates/Proof of Death
In December 2004 the Bernalillo County Probate Court Administrator attended a seminar on the New Mexico Open Records Act and privacy issues. Seminar materials referenced a New Mexico statute that prohibts a person from allowing the public to inspect the death certificate. This statute, Section 24-14-27(A) reads:

It is unlawful for any person to permit inspection of or to disclose information contained in vital records or to copy or issue a copy of all or part of any record except as authorized by law.

While it is still appropriate for the probate judge to request and review the death certificate, it should ot be included in the court file. The Bernalillo County Probate Court intends to remove all previously file death certificates and replace them with the Certificate of Review discussed below. We will then store the death certificates in a locked cabinet, secure from public view.

Further, NMSA Section 57-12B-3(D), effective January 1, 2004, prohibits businesses from disclosing social security numbers to the public. The statute reads:

D. A company acquiring or using social security numbers of consumers shall adopt internal policies that:
(1) limit access to the social security numbers to those employees authorized to have access to that information to perform their duties; and
(2) hold employees responsible if the social securitynumbers are released to unauthorized persons.

Although the probate courts are not technically a business, the New Mexico Administative Code (NMAC) contains similar provisions for Probate Case files. See specifically 1.17.230.804.E.

1.17.230.801 PROBATE CASE FILE:
A. Program: probate matters
B. Maintenance system: numerical by docket number
C. Description: record of probate proceedings before the court. File may contain petition, will, death certificate, notice to creditors, bonding documents, letters of administration, claims, proposed distributions, settlements, orders of appointment, orders of dstribution, correspondence, memoranda, etc. File includes probate court case files forwarded form county clerk's office or probate judge.
D. Retention: permanent.
E. Confidentiality: may contain materials covered by protective order or sealed materials.
F. Nota bene: No probate case file shall be microphotographed without probate docket sheet.
[1.117.230.801 NMAC - Rp 1.17.230.191 MNAC, 2/18/2003]

1.17.230.802-1.17.230.803 omitted

1.17.230.804 PROBATE DOCKET SHEET
A. Program: probate matters
B. Maintenance system: chronological by date of filing
C. Description: record of documents and events in a probate case. Record may show clers, judge, court type, date filed, time filed, number of pages, case number, decedent's name, social security number, date of death, attorney, waiver, judgment, court cost, etc.
D. Retention: until filed in probate case file
E. Confidentiality: Social security numbers shall not be released to the public per supreme court order 8000, dated April 5, 2001 [emphasis added], and federal Privacy Act of 1974, 5 USC Section 552a note Section 7.
[1.17.230.804 NMAC - Rp 1.17.230.194 NMAC, 2/18/2003]

1.17.230.805 INDEX OF PROBATE DECEDENTS
A. Program: probate matters
B. Maintenance system: alphabetical by decedent's name
C. Description: yearly alphabetical listing by decedent's name cross-referencing to docket number. Listing may show name of decedent, docket number, etc.
D. Retention: permanent
E. Nota bene:
(1) Courts have automated systems that provide access by defendant name, are not required to produce annual paper indexes. However, a five-year paper index shall be produced and forwarded to state archives.
(2) Paper indexes produced prior to automation shall be microphotographed (imaged) with a copy forwarded to state archives.
[1.17.230.805 NMAC - Rp 1.17.230.195 NMAC, 2/18/2003]

In light of the above statutes and rules, the Bernalillo County Probate Court has changed its policy concerning the handling of the original death certificates that are presented to the Court with each probate case filed. We still require the death certificate (or Pending Letter fom the Office of the Medical Investigator), but we no longer include them in the court record. Reviewing the death certificate is still important to prove the decedent's death and to determine decedent's domicile, marital status, date of death, whether five days have passed since the death, etc. The Bernalillo County Probate Judge reviews the death certificates in each case. We then return the death certificates to the attorney or applicant and fill out two copies of the following "Certificate Acknowledging Receipt and Review of Death Certificate" form, filing one copy in the court record and giving the other copy to the attorney or applicant.

In cases where the alleged deceased person is missing, only the district court has jurisdiction to hear the case.

You may be asked to declare a person dead. Do not accept that case; send it to the district court. See Section 45-1-107.

The death certificate indicates:

• the decedent’s name;
• date of death and age at time of death (which must be included in the initial Application);
• the decedent’s marital status (such as, whether there was a deceased spouse); and
• the decedent’s domicile.

This information can be useful when you review the initial Application.

Initial Probate Application
Reviewing the accuracy and completeness of court pleadings is one of the probate judge’s most important duties. Once the judge determines that the initial Application is correct and complete, he or she can admit the will, if any, and sign the Order opening the probate and appointing the personal representative. Section 45-3-301, a very important section of the Probate Code, outlines the required contents of the initial informal probate or appointment Application. The do-it-yourself forms and Henderson forms were created based on this section.

In a testate (there is a valid will) case, the first pleading is called the “Application for Informal Probate of Will and for Informal Appointment of Personal Representative.”

In an intestate (no valid will) case, the first pleading is called the “Application for Informal Appointment of Personal Representative.”

On the initial Application, the probate judge should make sure the following elements are present:

1. Is the Court caption correct?

It should read:

STATE OF NEW MEXICO
IN THE PROBATE COURT
______________ COUNTY (with correct county name filled in)

• HINT: Sometimes the Court captions on all the forms say DISTRICT COURT.

2. Name of Decedent

• Does decedent’s name match the name on the death certificate?
• HINT: Sometimes lawyers who use forms from past clients inadvertently list the names from the prior case.

3. Applicant’s Statement of Interest in the Estate
The Applicant is almost always the same person as the Personal Representative. The Personal Representative (who will conduct the decedent’s estate business once he/she is appointed by the court), must obtain legal authority from the court before acting. Once the judge signs the Order and issues the Letters, the Personal Representative can proceed.

The Applicant must state his/her name, the decedent’s name, and the Applicant’s relationship to the decedent (the reason he/she is qualified to apply to start the probate). The do-it-yourself forms list several reasons, which the Applicant can check off. Other forms may state these details in paragraph form.

Things for the Judge to Check re: Personal Representatives

• If there is a will, is the personal representative who is applying named as first choice?
  • If no, have proper renunciations/consents been filed? (For more details, see separate section on Personal Representatives)
• If no will, are there several people who have equal priority?
  • If yes, have they all signed proper renunciations and concurrences?
  • If not, have they at least signed the “I consent to the appointment of the personal representative listed above” section of the do-it-yourself forms
  • The do-it-yourself forms do not allow for this, but persons with equal priority can nominate someone else.
• Is the personal representative with highest priority applying?
  • If no, must go to formal probate, see Section 45-3-203(E).

4. Decedent’s Date of Death and Age at Time of Death

• Both the date of decedent’s death and decedent’s age at death must be stated.
• The death certificate is a way good to “double check” this information (i.e., do date of death and age on death certificate match date of death and age listed in Application?)

5. Domicile
The county and state of domicile at the time of decedent’s death must be listed in the Application.

• Does the death certificate say that the decedent is domiciled in your county?
• Does domicile on the death certificate match the domicile stated in the Application?
• Does the will, if any, say that the decedent is domiciled in your county? (It's okay if it doesn’t since we accept wills from other states, counties, or countries.)

Note: If the decedent is not domiciled in New Mexico, then a statement showing venue is required, Section 45-3-301(A)(3).

6. List of Spouse, Children, Heirs and Devisees
The Application must list decedent’s spouse, children, heirs and devisees, together with their complete address, city, state, and zip. Ages of minor children should be listed but no other ages are required. If the personal representative is a spouse, child, heir or devisee of the decedent, then the personal representative should also list himself/herself.

Who are the Heirs?
Section 45-2-103 lists which heirs have priority to inherit an intestate estate. This statute also gives guidance about which heirs must be listed in the initial Application:

• If decedent is married, decendent’s spouse is an heir.
• Decedent’s children, by representation;
• include all of decedent’s biological children, if any;
• include children adopted by decedent, if any.
• If one or more of decedent’s children have died, all children of the deceased child or children are also considered heirs of the decedent's estate.
• If the decedent had no souse or children, decedent’s parents are the heirs, if both survive, or the surviving parent;
• If the decedent also has no surviving spouse, children, or parents, then decedent’s brothers and sisters are the heirs; (if one or more of decedent’s siblings has died, the children of the deceased sibling(s) are also heirs of the estate);
• If the decedent has no children, parents or siblings, the decedent's grandparents are the heirs--if the grandparents are deceased, their children (decedent's aunts and uncles), are the heirs of the estate.

If no relatives of the decedent can be found, the estate “escheats” to the state school fund (Section 45-2-105).

The names and complete addresses of the surviving spouse, children, heirs and devisees must be listed in the Application, along with the ages of any minor children. The heirs are determined according to the above criteria.

For example, if the decedent had no spouse, but had children, the Applicant should list the children (and children of any deceased children) and then stops. If the decedent had no spouse or children, then Applicant should list the parents, if any. If no parents, then the Applicant should list the next level of heirs, and so on. All devisees (people or entities named as beneficiaries in a Will) must also be listed, but not alternate devisees.

If the Applicant does not know who or where some of the heirs are, he has a duty to perform a reasonably diligent search for them. In New Mexico, any heir who fails to survive a decedent by 120 hours (5 days) is deemed to have died before the decedent.

Other Possible Heirs?

• Spouse from whom the decedent was separated - Yes
• Divorced spouse - No (but terms of the divorce decree may stipulate otherwise)
• Fiance or Significant other - No
• Adopted child - Yes
• Children adopted by others - No
• Stepchildren and foster children - No
• Biological children born outside of marriage - Yes
• Children born after the death of a parent - Yes

A child may inherit from the estate of a parent who refused to support them, but a parent who has refused to support a child cannot inherit from the estate of that deceased child.

You will probably see the terms per stirpes (the share of each deceased child is divided among his/her surviving descendants, see Section 45-2-709) or by representation (the shares of deceased descendants are pooled and divided into equal shares based on number of surviving descendants of deceased descendants on that level, see Section 45-2-106) when reviewing cases. By Representation is the concept used in New Mexico when there is no Will, but you may see the term per stirpes used in a will.

Section 8 continued >