Special Administrators
Sometimes a special administrator needs to be appointed before a general personal representative is ready to serve. Most often, special administrations are sought when a time-sensitive matter needs immediate attention, such as releasing a body for burial or cremation, cleaning out an apartment, protecting the estate assets, etc. Sometimes an attorney will use a special administration as a discovery tool to find out whether a will exists and what property the decedent has. Or the process may be used to force the personal representative to take action and open the probate. Finally, someone might start a probate before all renunciations or other paperwork are complete.

The probate and district courts have jurisdiction to appoint special administrators to act on behalf of an estate before a regular personal representative is appointed. The special administrator has the duty to collect and manage the estate assets, to preserve them, to account for and deliver the assets to the personal represeentative once the personal representative is appointed. Sections 45-3-614 through 618 discuss this topic. the do-it-yourself forms to not contain language for requesting a special administrator.

Special administrators appointed in an informal probate proceeding do NOT have the power to distribute a decedent's assets. See NMSA Section 45-3-616. The special administrator serves more as a "babysitter" for decedent's property, collecting and protecting the property until a personal representative is appointed by the court. Special administrators appointed in formal proceedings have more powers. To make it clear that the Special Administrator cannot distribute decedent's assets, the Bernalillo County Probate Court has created the following order.

Demand for Notice (See NMSA Section 45-3-204)
Probate courts cannot accept a Demand for Notice unless a probate proceeding has already been opened with our court. If a probate has not been opened, the Demand must be filed in the District Court.

The Demand for Notice must contain:

1. The name of the decedent
2. The nature of the demandant's interest in the estate
3. The address of the demandant or his/her attorney

Once the court receives a Demand for Notice, the court is required to mail a copy of the Demand to the Personal Representative for the Estate.

Once the Demand is files, "no order or filing to which the demand relates shall be made or accepted without notice" to the demandant or his/her attorney. Absence fo such notice does not invalidate any order granted insuch a hearing or any filing, but the person granted the order or making such a filing may be held liable for any damages to the demandant.

While the statute does not appear to require the court to provide these copies to the demandant, it is good practice for the court to do so.

Who Pays for Copies? Since we need to be consistent inour policy regarding fees for copies (we can't change one person for copies, but not another), we should probably ask the person requesting the records to pay for them. Section 34-7-15 authorizes specific fees for clerks of probate courts.

What Are We Required to Give Them? Since court files are considered open records, we are required to provide anyone copies of anything they want from the files. If the demand relates to specific filings, they may not care about everything filed. Often, someone demanding copies of records wants things like the Inventory. Since Inventories often are not filed with the Court, we tell the person requesting this information to contact the personal respresentative or his/her attorney.

More than Three Years since Decedent’s Death
The general rule is that probate cases should be filed within three years of decedent’s death. Section 45-3-108A contains some exceptions to this three-year rule. If decedent had a will, Section 45-3-108A(5) appears to require a formal testacy proceeding. Only the district court would have jurisdiction in this circumstance.

Section 45-3-108A(4) gives probate courts jurisdiction to open an informal appointment of personal representative more than three years after decedent’s death. It is the opinion of most probate judges that this allows us jurisdiction only in intestate cases. The personal representative has no right to possess estate assets other than to confirm title to the appropriate successors.

Agreements Among Successors, Section 45-3-912
Despite the principle that the intent of the testator is all-important, New Mexico law allows successors to the estate to alter the testator’s wishes. All affected must sign a written contract to alter their shares. Although the law does not say so, a copy of this agreement should be filed in the court file. Otherwise, problems could arise later if a dispute occurred over the distribution of the property.

Disclaimer Statutes
Disclaimers are used when someone who is supposed to receive decedent’s property does not want it (for tax or other reasons). Disclaimers must comply with federal Internal Revenue Code requirements and New Mexico law, Sections 46-10-1 through 17. Disclaimers must be in writing and made within nine months of decedent’s death. The person making the disclaimer cannot use or benefit from the disclaimed property. New Mexico’s disclaimer law was amended in 2001 to allow a disclaimer to be:

• delivered to the personal representative of the decedent’s estate; or
• if no personal representative is serving, it must be filed with a court having jurisdiction to appoint the personal representative, Section 46-10-12(c).

Under these new provisions, someone could open a case in probate or district court for the sole purpose of filing a disclaimer. The $30 docket fee would still be paid and the case would be docketed as if it were a regular probate case. No further filings relating to the disclaimer appear to be required. The Bernalillo County Probate Court requires an original death certificate as part of the disclaimer paperwork.

Family/Personal Property Allowances
New Mexico law allots $30,000 of decedent’s estate to a surviving spouse as a family allowance (Section 45-2-402). If decedent has no surviving spouse, then decedent’s minor and dependent children share the $30,000 in equal shares. This family allowance is exempt from and has priority over all claims against the estate, including creditors’ claims.

New Mexico also allows a $15,000 personal property allowance to decedent’s surviving spouse (Section 45-2-403). Items of household furniture, autos, and personal effects worth $15,000 can satisfy this allowance. Other types of decedent’s estate property, both real and personal, can be used to satisfy this allowance if decedent’s personal effects are not worth $15,000. If decedent has no surviving spouse, then decedent’s (1) children named in a will, (2) any omitted children of decedent, or (3) children who are decedent’s intestate heirs share the $15,000. Children specifically and intentionally omitted from a will are not eligible for a portion of the $15,000. This personal property allowance is exempt from and has priority over all claims against the estate, except for the family allowance. A recent New Mexico case interprets these allowances, In re the Estate of Jewell, 130 N.M. 93 (Ct. App. 2001).

Omitted Spouse and Children
Sections 45-2-301 and 45-2-302 discuss the entitlements of decedents’ spouses and children who may have been omitted from decedent’s will.

Small Estate Affidavits
Estates consisting of personal property valued at $30,000 or less may be able to use a “Collection of Personal Property Affidavit,” set out in Sections 45-3-1201 and 45-3-1202. A probate would not be required if certain circumstances exist. The Judge’s Glossary, above, also defines these affidavits.

Transfer of Homestead Affidavits
Sometimes a decedent’s home was acquired during the marriage as community property, but is titled only in decedent’s name rather than both spouses’ names. Section 45-3-1205 provides a shortcut transfer of title to the community homestead to the surviving spouse. The Judge’s Glossary also briefly discusses this under “Affidavit of Surviving Spouse.”

Collection of Decedent’s Final Paycheck
The surviving spouse of a decedent may, without a probate proceeding, collect decedent’s final paycheck pursuant to Sections 45-3-1301 and 45-3-1302.

Creditors’ Claims
Although it is not the judge’s job to supervise personal representatives in properly performing their duties, it is important to study and understand the statutes governing creditors’ claims. See generally Sections 45-3-801 through 45-3-816. Section 45-3-801 requires personal representatives within three months of their appointment, to give written notice to known and reasonably ascertainable creditors. The creditor has two months to present a claim, either to the personal representative or to the court, Section 45-3-804(A). The personal representative has sixty days to act on the claim, allowing or disallowing it, Section 45-3-806(A). Claims must be paid by the personal representative in a certain order. See Section 45-3-805. Section 45-3-803(A)(1) generally mandates that all creditors’ claims are barred against the estate unless presented within one year following the decedent’s death. Thus, if a probate is not opened until one year after decedent dies, creditors would be out of luck.

Note: Certain assets of decedent are exempt from creditors’ claims. For example, Section 42-10-5 exempts most life insurance proceeds from creditors’ claims. See also sections 42-10-1 through 42-10-13.