Probate of Wills and Administration

[Nasheayahu]

Jurisdiction

New Mexico

Evening,

My mother has recently passed, in her Will appoint me Personal Representative and Primary Benificery of her small estate, being less then $50,000.00. The house was TOD to me according to non-probate law. My brother is NOT contesting, my sister is nowhere to be located.

With that said, the granddaughter who never lived nor established a relationship with my mother has file for an appointment to be Personal Representative, using article that states "Priority among persons seeking appointment as personal representative." subsection (F) No person is qualified to serve as a personal representative who is: (2) a person whom the court finds unsuitable in formal proceedings.

In short, the claims are false and easily to be destroyed by the documental evidence I kept on the events she is claiming, but here is my question:

What does this article Probate of Wills and Administration has to do with my suituation when my mother has already made the Will, its authentic and put together by an attorney and I paid for it. Its a formal hearing, because the granddaughter is not in the Will nor anywhere else in the immediate family circle of obtaining anything from my mother.

 

[army judge]

What does this article Probate of Wills and Administration has to do with my suituation when my mother has already made the Will, its authentic and put together by an attorney and I paid for it.

It isn't conclusive when a loved one dies to simply show or assert your possession of a will.

Once your loved one/relative has been called to glory, the decedent's estate must be probate in order for you, the survivor to acquire "stuff", as in a home, car, bank accounts, etc...

In your state, NM, you must adhere to the following protocol. First, however, please accept my sincerest condolences upon the passing of your beloved mother.

If you hired an attorney to create mother's will, contact that attorney to ensure her wishes are followed. Probate can be extremely complex, formal, as well as foreign to most people. It also comes at a difficult time, the passing of a loved one. Survivors are grieving, hurting, mourning the loss of a beloved parent, sibling, spouse, other relative, or friend.

Meantime, you might find the following information useful.

How Probate Laws Work in New Mexico

By Sal Vahora / January 14, 2021

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If you've recently lost a loved one, you may be facing the challenge of figuring out what to do with their property. While grieving takes time, other responsibilities cannot be avoided. The person's estate must be taken care of in a timely manner.

The process for dealing with an estate of a deceased person is called probate. Probate is a legal method which involves the courts. If you're involved in the estate of the decedent, you should understand some basic information about what happens.

Is Probate Required in New Mexico?

Probate is usually necessary for estates in New Mexico. It's a required process unless a few strict requirements are met. New Mexico statutes dictate how it is to be handled.

How Do You Avoid Probate in New Mexico?

While probate is usually required by law, there are ways in which you can avoid having an estate go through probate. The best way to accomplish this goal is to place the estate in a revocable living trust with someone named as a beneficiary of the estate to receive it when the person dies.
Some assets may not need to go through probate if they are owned jointly. The surviving owner would automatically become the sole owner when the other person dies. Assets with named beneficiaries or those that are payable on death to someone wouldn't have to be listed as part of probate. Examples include checking and savings accounts in banks, life insurance policies, and retirement account funds.

Can an Executor of an Estate in New Mexico be Compensated?

An executor of an estate may be compensated for their time and expenses. This topic is addressed in the New Mexico Statutes 45, Article 3, Section 719.

How Much Does an Executor in New Mexico Get Paid?

The New Mexico Statutes doesn't provide strict guidelines for payment of the executor. It only states that the personal representative is allowed to receive reasonable compensation. If the will provides for an amount, that total would take precedence. However, the executor may renounce the amount and ask for reasonable compensation. Section 721 also states that the court is allowed to review the amount of compensation to determine if it is excessive. The executor may be required to pay back any amount considered to be excessive payment.

How Long Does Probate in New Mexico Take?

The timeline for probate can vary widely, but it usually lasts at least a year. Creditors have up to a year to submit a claim against the estate. However, complications can arise that would lengthen the time it takes for probate to be completed and the heirs to receive their inheritance.

Do All Estates Have to Go Through Probate in New Mexico?

Most estates will go through probate in New Mexico. However, it is possible to avoid it if the estate is in a trust or all assets automatically pass onto someone else. If an estate is valued at less than $50,000, an affidavit may be used to access the assets or have them transferred to the heirs. A copy of the death certificate will also need to be presented.

You may also use a simplified probate procedure if the value of the estate is less than the allowance for family as well as funeral expenses and other costs. While the estate must still go through the court, the executor usually doesn't have as many requirements to follow.

Does a Will Have to Be Probated in New Mexico?

A will must be filed with the county court in New Mexico where the person resided before their death. Even if there is no estate or the assets don't need to go through probate, the will must be recorded. The court may need to validate the will or settle disputes contesting the will.

Settling an Estate in New Mexico

When it comes to settling an estate in New Mexico, the process is similar to all other states. Probate has a general process to go through. However, the timelines may differ and other details, such as what documents are necessary, may be unique to the state. It's helpful to know the basic steps involved in handling an estate in New Mexico.

• A petition is filed with the court in the county where the decedent lived to open probate.
• The court approves the person named in the will as the executor. If there is no one, the court will appoint a personal representative to act on behalf of the estate.
• The executor will take inventory of all the assets of the estate, securing them and having them appraised, if necessary.
• The executor will notify creditors and pay all debts of the estate.
• A tax return may need to be filed and any taxes owed will need to be paid.
• Once all other debts are satisfied, the executor will distribute the remaining assets to the heirs.

This is a simplified list of the steps involved, but each one can take an indefinite amount of time, depending on the complexity of the estate.

How Long Do You Have to File Probate After a Death in New Mexico?

In most cases, New Mexico statutes require that probate be filed within three years of the death of the person. However, no one can be appointed as executor or probate be formally opened for the first 120 hours after the death.

Probate Court in New Mexico

Probate is handled by the district courts in New Mexico. There are judicial district courts for the state. The one exception is Bernalillo County, which has its own probate court. You can find a map which divides the courts as well as location and information about each court on the New Mexico Courts website: NM Courts.

Probate Code in New Mexico

New Mexico is one of the few states to utilize the Uniform Probate Code. It is found in Chapter 45 of the New Mexico Statutes under Article 3. The statutes governing probate can be found on the New Mexico Compilation Commission website: Home – NMOneSource.com.

Sources

1. Probate Shortcuts in New Mexico | Nolo
2. New Mexico Statutes > Chapter 45 – Uniform Probate Code » LawServer
3. Home – NMOneSource.com

How Probate Laws Work in New Mexico | Probate Advance

Probate is usually necessary for estates in New Mexico. It’s a required process unless a few strict requirements are met.

probateadvance.com

 

[Nasheayahu]

I made an update, my bother is NOT contesting the Will.

 

[army judge]

I made an update, my bother is NOT contesting the Will.

No worries, as long as you contact and arrange the services of an attorney.

If the estate is worth less than $50,000, probate might not be necessary.

Read my post, for a more detailed explanation.

If the estate is worth more than $50,000, be smart, retain the services of a NM licensed estate attorney.

 

[Nasheayahu]

What about the granddaughter who is trying to ease in the position of a Personal Rep, who never had a relationship with the immediate family? And how is she able to lawfully use this article to start a formal probate in an attempt to remove me? She has no inheritance, except my mother put a clause of $1 to anyone who tries to claim it.

 

[army judge]

What about the granddaughter who is trying to ease in the position of a Personal Rep, who never had a relationship with the immediate family?

Discuss ALL of your concerns with the attorney you retained to create the deceased's will.

Don't expect the answers you seek to be forthcoming for free via unknown entities operating on the internet.

Your situation requires the services of a licensed will and/or estate attorney. The longer you delay retaining those services, you're allowing interlopers to perhaps steal what was to become yours!!!!

 

[Nasheayahu]

I was already seeking an attorney, wait for the consultation, but through all the distraction I did not think to call the original attorney.

But while I was waiting just wanted to know the procedures in this and I found it this morning. The granddaughter by and through the her attorney is using the wrong articles either by ignorance or purposed.

According the the New Mexico Probate Judges Manual 3.1.7 Removal of Personal Representative "Probate judges lack the authority to remove a personal representative on the motion of the heirs (or an other interested party). A personal representative can only be removed for cause by the district court (Section 45-3-611)" (emphasis by manual)

45-3-611. Termination of appointment by removal; cause; procedure.

A. Any interested person may petition for removal of a personal representative for cause at any time.
Upon filing of the petition, the district court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to such other persons as the district court may direct. Except as otherwise ordered as provided in Section 3-607 [45-3-607 NMSA 1978], after receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration or preserve the estate. If removal is ordered, the district court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.

B. Cause for removal exists when:

(1) removal would be in the best interests of the estate;
(2) it is shown that a personal representative or the person seeking his appointment intentionally
misrepresented material facts in the proceedings leading to his appointment;
(3) the personal representative has disregarded an order of the district court;
(4) the personal representative has become incapable of discharging the duties of his office;
(5) the personal representative has mismanaged the estate; or
(6) the personal representative failed to perform any duty pertaining to the office.

C. Unless the decedent's will directs otherwise, a personal representative appointed at the decedent's
domicile, incident to securing appointment of himself or his nominee as ancillary personal representative, may obtain removal of another who was appointed personal representative in New Mexico to administer local assets.

No cause qualifies, I can prove this easy! And....

45-3-607. Order restraining personal representative.

A. On petition of any person who appears to have an interest in the estate, the district court by temporary
order may restrain a personal representative from performing specified acts of administration, disbursement or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty. Persons with whom the personal representative may transact business may be made parties.

B. The matter shall be set for hearing within ten days. Notice shall be given to the personal representative and his attorney of record, if any, and to such other persons as the district court may direct.

So now, my question is, is the fraud or ignorance on behalf of the other party (granddaughter the petitioner) attorney?

 

[adjusterjack]

This is simple. The granddaughter filed to be rep of the estate. Now you go to the courthouse and file to be rep of the estate. The court will determine priority.

You're wasting time here.

 

[Nasheayahu]

I'm already the Personal Representative appointed by my mother's Will. The granddaughter is not qualified according to priority:

45-3-203. Priority among persons seeking appointment as personal representative.

A. Whether the proceedings are formal or informal, persons who are not disqualified have priority for
appointment in the following order:

(1) the person with priority as determined by a probated will, including a person nominated by a
power conferred in a will;
(2) the surviving spouse of the decedent who is a devisee of the decedent;
(3) other devisees of the decedent;
(4) the surviving spouse of the decedent;
(5) other heirs of the decedent; and
(6) forty-five days after the death of the decedent, any creditor.

granddaughter is none if these. Now I can see why there trying an alternate route by fraud.

 

[zddoodah]

It's worth noting that there doesn't appear to be a single coherent question in any of your posts. In post #5, there are two sentences that end in question marks, but they aren't questions. In post #7, you seem to have asked a question, but it's not really clear what you're asking. Obviously, no one here is in a position to evaluate the papers that your niece filed since we haven't read them.

I'm already the Personal Representative appointed by my mother's Will.

No, you're not.

Your mother's will nominated you to serve as PR. Only the court can appoint you.

Your post is a bit convoluted, but here's what appears to be happening: Your niece (I'm assuming the daughter of one of the siblings you mentioned) is seeking to be appointed as PR. She is apparently claiming that, despite your mother's nomination of you, you are somehow unsuitable to serve in that capacity. Since, obviously, no one here has read the papers she filed, we know nothing about the factual bases for her claim. Also, obviously, you dispute what she's claiming. Your recourse is to file an opposition to whatever she filed and argue your position. I strongly recommend that you retain an attorney to represent you in this regard - especially since your niece appears to have one.

 

[Nasheayahu]

Your post is a bit convoluted

Just seeking answers to understand the situation.

Your mother's will nominated you to serve as PR. Only the court can appoint you.

This does not make sense, can you provide articles verifying your statement?

Your recourse is to file an opposition to whatever she filed and argue your position.

Have prepared that.

I strongly recommend that you retain an attorney to represent you in this regard

Doing that now, and the originator if the Will does not represent to contested a Will, only writes them.

no one here has read the papers she filed, we know nothing about the factual bases for her claim

Is it okay to a redacted version of her filing here? If so, I will post it....

 

[army judge]

Is it okay to a redacted version of her filing here? If so, I will post it....

No, please don't post anything, even if you redact personal details.

However, you're burning daylight.

Hire/retain an attorney ASAP.

Delays only permit your enemies / adversaries to thwart and delay you.

Additionally, don't discuss any aspect of this soon to be feces festival with anyone but the attorneys you interview and the one you eventually hire.

 

[adjusterjack]

Your mother's will nominated you to serve as PR. Only the court can appoint you.

Nasheayahu
This does not make sense, can you provide articles verifying your statement?

Don't have to. It's axiomatic that when somebody files anything in court that purports to work against your interests, you must file a response that defends your interests.

Petitions, motions, pleadings, etc, that are not responded to may be granted by the court.

Does it make sense now?

Is it okay to a redacted version of her filing here?

Not necessary. It doesn't matter what she wrote, you still have to respond to it. Without your response, the court would have no choice but to grant her request despite what the quoted statute says.

Your recourse is to file an opposition to whatever she filed and argue your position.

"Have prepared that."

Good. Then my comments are superfluous but gratuitously remain for clarification.

 

[zddoodah]

No, you're not.

Your mother's will nominated you to serve as PR. Only the court can appoint you.

This does not make sense, can you provide articles verifying your statement?

I'm not sure what doesn't make sense. It's fundamental probate law. It's like asking if I can provide an article to support the fact that a corporation can't successfully sue for infliction of emotional distress.

Have prepared that.

Great.

Doing that now, and the originator if the Will does not represent to contested a Will, only writes them.

Huh?

Is it okay to a redacted version of her filing here? If so, I will post it.

It's ok with me, but there's no real need to do so unless you have questions that require knowledge of the factual allegations and the allegations can't adequately be summarized in a post.

 

[Zigner]

Or to put it super plainly: The person who wrote the will stated "I want Nasheayahu to be my personal representative." The court then will need to say "Nasheayahu, according to the terms of the will, you are appointed as the personal representative" before you can act in that capacity. The court does this with "letters testementary."

 

[Nasheayahu]

Thanks everyone, it clear now.

Huh?

The attorney who made the Will for my mother, does not litigate Wills.

 

[Nasheayahu]

UPDATE: I have been appointed personal representative, however the court has not officially signed the order yet.

However, there are other issued that have arise that has violated my rights. I want to appeal several interlocutory orders and I'm not clear as to where I start filing. I undertand:

Article 39-3-4 NMSA 1978. Interlocutory order appeals from district court.

A. In any civil action or special statutory proceeding in the district court, when the district judge makes an interlocutory order or decision which does not practically dispose of the merits of the action and he believes the order or decision involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order or decision may materially advance the ultimate termination of the litigation, he shall so state in writing in the order or decision.

B. The supreme court or court of appeals has jurisdiction over an appeal from such an interlocutory order or decision, as appellate jurisdiction may be vested in those courts. Within fifteen days after entry of the order or decision, any party aggrieved may file with the clerk of the supreme court or court of appeals an application for an order allowing an appeal, accompanied by a copy of the interlocutory order or decision.

Article 39-3-2 NMSA 1978. Civil appeals from district court.

Within thirty days from the entry of any final judgment or decision, any interlocutory order or decision which practically disposes of the merits of the action, or any final order after entry of judgment which affects substantial rights, in any civil action in the district court, any party aggrieved may appeal therefrom to the supreme court or to the court of appeals, as appellate jurisdiction may be vested by law in these courts.

These orders do "... when the district judge makes an interlocutory order or decision which does not practically dispose of the merits of the action and he believes the order or decision involves a controlling question of law as to which there is substantial ground for difference of opinion ...".

In summary, the orders allow the Petitioners to temperately administrator the Estate until the judge signs the order for my appointment.

However, there is no probate law that allows a non-heir, non-creditor, does not qualify to serve without bond, with no priority, no consent from me as the nominated personal representative with the highest priority to serve; to administer an Estate until the order is officially signed.

I read "Steps to File an Interlocutory Appeal in New Mexico" and "Appeals Process for Interlocutory Orders". I spoke with NM COA Clerk, the Clerk stated I need permission from the District Court before filing. But, I did not explain this was a Probate Court under the jurisdiction of the District Court, because the Petitioner is not an heir, no priority and no consent to be a personal representative. I know even though this is a probate proceeding, the civil rules still apply.

For clarity, my question is do I file in the Probate Court a:

• Motion for Leave to Appeal or Notice of Appeal to seek the COA opinion on the orders,
• Motion to Appeal the Orders and the Probate Court sets a hearing for arguments, and after denies the Motion. Then I file with the NM COA.

or since this is a probate proceedings do I:

• file directly with NM COA or
• after the Probate Court denies the Motion, then file with NM COA.

Also, I would like to, but can find a rule stating I have to get permission from the probate / district court before filing with the NM COA.

 

[Nasheayahu]

These orders do "... when the district judge makes an interlocutory order or decision which does not practically dispose of the merits of the action and he believes the order or decision involves a controlling question of law as to which there is substantial ground for difference of opinion ...".

Correction:

"These orders do from Article 39-3-2 NMSA 1978 "...any interlocutory order or decision which practically disposes of the merits of the action, or any final order after entry of judgment which affects substantial rights..."

 

[Zigner]

You need an attorney.

 

[Nasheayahu]

Found the answer:

1. Section 39-3-4(A). Interlocutory order appeals from district court states in pertinent part "... when the district judge makes an interlocutory order... which does not practically dispose of the merits"
   
   which does not practically dispose of the merits: "This phrase typically refers to a legal situation where a case is dismissed or resolved without the court making a decision on the actual facts or legal arguments involved. Instead, the dismissal occurs due to procedural issues or technicalities, meaning the core substance of the dispute remains unaddressed."
   
   This is what happen and I "...he believes the order ...involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order ...may materially advance the ultimate termination of the litigation" and
   
   
2. Section 39-3-2. Civil appeals from district court states in pertinent part "any interlocutory order ...which practically disposes of the merits of the action ...which affects substantial rights, in any civil action in the district court, any party aggrieved may appeal therefrom to the supreme court or to the court of appeals..."
   
   practically disposes of the merits of the action: "The phrase "practically disposes of the merits" refers to a legal decision that effectively resolves the main issues of a case, allowing for an appeal to a higher court. This means that the decision addresses the core facts and legal principles, rather than just procedural matters."
   
   In addition to (1), this is what did not happen with the interlocutory orders.

This a game play by the Court and is relying on my ignorance to control the narrative. Therefor since I have 30 days after the entry of these orders, I will just file something like a Motion for Leave for Interlocutory Appeal of Court Orders. Wait the 15 day response if any, then file first with the COA.