Probate is the legal process through a state court for the purpose of administering the estate of a deceased person. It includes a resolution of claims against the estate and the distribution of the deceased person’s property. If an individual dies owning more than a minimal amount of property, a probate will be necessary to transfer that person’s estate. This means that a court proceeding will be necessary to transfer the property to others based on the deceased person’s will or under state law if the individual died intestate (without a will). Under New Mexico law, the decedent’s “probate estate” is governed by the Uniform Probate Code.
The probate process is started by filing an application for appointment of a Personal Representative who becomes the legal representative of the decedent’s estate. The Personal Representative “steps into the shoes” of the decedent and has similar rights and powers which may include filing lawsuits that the decedent was entitled to bring, paying creditors, selling assets, distributing assets to beneficiaries, etc. The distribution of assets is usually done according to the decedent’s will or according to state law if the decedent died intestate. The process of administration of the estate could be straightforward and simple or very complex depending on the size of the estate, amount of debt and challenges by creditors, heirs or other parties.
As with any legal proceeding, there are technical aspects to probate administration:
- Creditors must be notified and legal notices published.
- The Personal Representative is required to distribute assets and take creditors’ rights into account.
- Title to property dictates whether or not a probate is necessary. If property is titled solely in the name of a person or as a tenant in common with a third party, a probate proceeding will generally be necessary.
- There are time factors involved in filing and objecting to claims against the estate.
- There may be a lawsuit pending over the decedent’s death or there may have been pending suits that are now continuing. There may be separate procedures required in contentious probate cases.
- Real estate or other property may need to be sold to effect the correct distribution of assets pursuant to the will, or merely to pay debts.
- Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.
- Other assets may simply need to be transferred from the deceased to his or her beneficiaries, such as life insurance. Other assets may have pay on death or transfer on death designations, which avoids probate.
Local laws governing the probate process often depend on the value and complexity of the estate. If the value of the estate is relatively small, the probate process may be avoided. An example in New Mexico where a probate is not required is where the overall value of decedent’s estate is less than $50,000 and does not include any real estate. Sections 45-3-1201 and 45-3-1202 NMSA 1978 allow for the collection of personal property of a decedent by use of an affidavit.
A probate lawyer offers services in probate court, and may be retained to open an estate or offer service during the course of probate proceedings on behalf of the executor or Personal Representative of the estate. Probate lawyers may also represent heirs, creditors and other parties who have a legal interest in the outcome of the estate.