Per Stirpes/By Representation Example: Bob died, leaving an estate of $300,000. He had no surviving spouse. Bob had three children, two of whom are deceased. Child 1 is living and has 2 children; Child 2 had three children; Child 3 had one child.

Under either concept, Child 1 inherits $100,000. Child 1's children inherit nothing because Child 1 is still alive.

Under per stirpes, Child 2's three children would split Child 2’s $100,000, each receiving $33,333.33. Child 3's child would receive Child 3’s entire share of $100,000.

Under by representation, the shares of Child 2 and Child 3 ($200,000) would be added together and then split equally among their four children, each receiving $50,000.

Knowing who the heirs are is important because New Mexico law requires the heirs of an estate to be listed in the Application even if the heir is omitted from a will or specifically disinherited. Personal Representatives of the Estate are also required to give decedent’s spouse, children, heirs, and devisees notice of their appointment within ten days of their appointment.

This is required so that heirs are informed about the probate and have an opportunity to challenge the will or appointment of personal representative. If a will were proved to be invalid, the heirs would inherit the estate.

7. Check Information about Will, if any

• Is it the original will or an authenticated copy probated in another jurisdiction (Section 45-3-301(B)(1))?
  • If no, must go to formal probate, see Section 45-3-402(A)(B).
• Does date on will match date of will stated in Application?
  • Check date will is signed—sometimes they accidentally pick up notary’s expiration date listed at very end of will instead of date will was signed;
  • Do not worry if notary’s commission has expired by the time you see the will. As long as the notary’s commission was current at the time the will was signed, it is OK.
• Sometimes will is undated, has two different dates, or the date in the Application is wrong (an undated will is not invalid, but it makes it difficult to determine which is the current will).
• Is will properly signed by testator?
• Did two witnesses also sign?
• Is there language in will that says they were all in each other’s presence and watched each other sign, as required by Section 45-2-502? If no, you have the discretion to request additional paperwork saying that they were all together, such as affidavits from the witnesses or anyone else with knowledge of the execution, Section 45-3-303(C).
• The Bernalillo County Probate Court stamps all original wills that are admitted with a stamp that says “Approved and Duly Admitted to Probate this ____ day of _____________, 20__. __________________________ Probate Judge.” Other probate courts record the original will in the County Clerk’s records.
• A will must be declared in the Order to be valid by the probate or district court (Section 45-3-102).

Note: The Application should contain several statements about the will, its being validly executed, and that there is no evidence of revocation (see Section 45-3-301(B)).

7A. Additional Intestate Requirements
If no will exists, then the Application must so state. Section 45-3-301(D)(1) says the Application should state, “after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in New Mexico….” What this means in English is, “I looked really hard and could not find a valid will.” The do-it-yourself forms say, “I have looked carefully and thoroughly for a will of the decedent and did not find one. I believe that the decedent died without a will.”

Intestate Applications must also include (per Section 45-3-301(D)(2)):

• The priority of the person whose appointment is sought; and
• The names of any other person having a prior or equal right to the appointment.

8. Statement re: Other Personal Representatives
The Application includes language identifying and indicating the address of any personal representative of decedent appointed in New Mexico or elsewhere. Usually, there is not one, so the Application will instead state “No other personal representative has been appointed in New Mexico or elsewhere” or similar language.

9. Demands for Notice
The Application will state whether any demands for notice of the probate have been received or filed. Probate courts do not accept demands for notice until a case is opened. But the district court can accept a demand before a probate is filed. The Applicant should check with the district court before filing the initial Application to ask whether any demands for notice have been filed concerning the decedent. See Section 45-3-204.

10. Time Limits

• Have 120 hours (5 days) passed since decedent’s death? If not, the judge must hold the case until five days have elapsed, see Sections 45-3-302, 45-3-307(A).
• If decedent is non-resident, court shall delay order of appointment for thirty days, with limited exceptions, following the date of death (Section 45-3-307(A)).
• Have more than 3 years elapsed since decedent’s death?
  • If “yes,” you may have jurisdiction under Section 45-3-108(A)(4) (unfortunately, do-it-yourself forms do not include this option, so pro se Applicants will have to amend the form);
  • If “yes,” and a will exists, Applicant should proceed in district court.

11. Ending Requests
At the end of the Application, the Applicant will ask the Court for certain things:

• To enter an Order informally probating decedent’s will, if a testate case;
• To informally appoint the applicant as personal representative;
• (usually) To allow the personal representative to serve without bond, in an unsupervised administration (Note: the probate court does not have jurisdiction over supervised probates);
• To issue Letters Testamentary or Letters of Administration to the personal representative.
• Some catch-all phrase about “any other relief as the court believes appropriate.”

12. Verification (Section 45-3-301(G))
All Applications must be verified! This means the Applicant must state, under oath, that the statements in the Application are true to the best of his/her knowledge. The Verification must be signed by the Applicant in the presence of a notary public, who also signs and notarizes the Verification.

Note: The do-it-yourself forms only ask for the name of the Applicant in the verification section. Nevertheless, the Verification should be signed by the Applicant and not just include a printed name.

Common Errors on Initial Application

Pro Se Applicant Errors

• Using wrong set of forms;
• Failure to list all heirs, including themselves;
• Listing wrong date of will in Application;
• Failure to include complete addresses (since personal representative has duty to give notice of appointment to heirs within 10 days [Section 45-3-705], they need complete addresses for all the heirs);
• Failure to call district court and/or to check box re: demand for notice in Application (see Section 45-3-204);
• Failure to sign Application in presence of a notary public.

Attorney Errors

• Wrong court caption;
• Wrong names in pleadings;
• Listing wrong date of will in Application;
• Failure to list all heirs with complete addresses;
• Failure to ask for Letters Testamentary in testate case (due to error in Henderson form);
• Omitting Applicant’s Verification at end of Application;
• Failure to notarize Verification of Applicant;
• Leaving out some of the elements required in Application or Order;
• Asking probate court to do something we lack jurisdiction to do.

Initial Probate Order
The probate judge must sign an Order appointing the personal representative and admitting the will, if any, to probate. The judge cannot sign this Order unless the initial Application is complete.

Testate Orders
Section 45-3-303 lists the findings, based on the initial Application, that the Order in a testate case must include:

• the Application is complete;
• the Applicant made the proper Oath or Affirmation (this is the verification, discussed above);
• the Applicant is an interested person;
• jurisdiction is proper (Section 45-3-303 does not list this finding, but it is important to include anyway);
• venue is proper;
• the original will is in the possession of court and will be entered into probate;
• any notice required has been given (this has to do with the Demand for Notice, not the Notice of Appointment that has to be given within 10 days of appointment);
• the time limit for original probate has not expired and the probate is filed within the time limits of the probate code.

You will also see language in the Order that:

• the applicant has priority to serve as personal representative; and
• no other personal representative has been appointed in New Mexico or elsewhere.

At the end of the Order what you are actually ordering is that:

• the application is granted;
• the will of decedent is informally probated;
• the applicant is informally appointed as personal representative;
• Letters Testamentary to the personal representative will be issued upon qualification and acceptance.

Intestate Orders

Section 45-3-308 lists findings that the Order in intestate case must include:

• the Application is complete;
• the Applicant made the proper Oath or Affirmation (this is the verification, discussed above);
• the Applicant is an interested person;
• jurisdiction is proper (Section 45-3-308 does not list this finding, but it is important to include anyway)
• venue is proper;
• Applicant is unaware of any unrevoked last will and testament, and the request for the appointment does not relate to any will;
  8-12 Rev. January 2003
• any notice required has been given (this has to do with the Demand for Notice, not the Notice of Appointment that has to be given within 10 days of appointment);
• the time limit for original probate has not expired and the probate is filed within the time limits of the probate code;
• the applicant is an interested person;
• the applicant has priority to serve as personal representative; and
• no other personal representative has been appointed in New Mexico or elsewhere.

At the end of the Order is what you are actually ordering that:

• the application is granted;
• the applicant is informally appointed as personal representative;
• Letters of Administration will be issued to the personal representative upon qualification and acceptance.

Note: Check judge’s signature line on Order (it should say Probate Court Judge, not district court Judge). Also, if an attorney is representing Applicant, the attorney’s signature, name and complete address should appear on the Order. Otherwise, the Applicant signs the Order.

How to Issue Letters

The Letters are the documents that give Personal Representatives the authority to act on behalf of Estates. Letters can only be issued after the probate judge has signed an Order admitting a will to probate and/or appointing a Personal Representative, and the Court has received an Acceptance of Appointment from the Personal Representative (some people combine the Letters and the Acceptance into one form). See Sections 45-3-102, 45-3-103, 45-3-601.

• Letters Testamentary are issued when there is a will
• Letters of Administration are issued if there is no will

Note: This is a technicality that should not hold up the issuance of the Letters. You can amend the Letters form to reflect the proper title.

Note: Make sure all the information on the form is correct---attorneys and others have submitted Letters naming the deceased as the Personal Representative, or using names from a completely different estate proceeding. The Court Clerk signature line should say “Probate Court Clerk,” not “District Court Clerk.”

Once the Order has been signed, the Judge (or County Clerk or Deputy Clerk)

1. Signs and dates the Letters;
2. Puts the Court seal on the Letters and on all copies submitted to the Court;
3. "File" stamps the original copy of the Letters and dockets the Letters with the other pleadings submitted to the Court; and
4. "Endorsed-Filed" stamps the copies and returns them to the Petitioner or Attorney who submitted them.

Personal Representatives often require "current letters" (many financial institutions require that the Letters have been issued within 30-90 days). Instead of issuing "new Letters" when the original Letters are still in full force and effect, the Court issues Certified Copies by:

1. reviewing the file or docket sheet to make sure that the Personal Representative still has the authority to act on behalf of the estate (make sure that no Verified Closing Statement has been filed so that the estate is still open).
2. stamping each copy of the Letters with a stamp that says that the copy is a true and correct copy of the letters filed with the Court and that they are still in full force and effect.
3. signing and dating the certification and stamping each certification with the Court seal.

If someone needs a certified copy of the Letters, even though the case has already been closed, the Court can certify that the copy is a true and correct copy, but not that the Letters are still in full force and effect. Make sure that whoever is ordering the certified copies understands this--they may need to reopen the case if this is not sufficient for their needs.