What is probate?
Probate is the court process to obtain legal authority to act on behalf of the estate of a person who has died (decedent). The Probate Court appoints a legally qualified person (or persons) as the personal representative of the estate for the purpose of managing and settling the decedent’s affairs. One of their duties is to distribute the assets of the estate according to the decedent’s will, if there is a valid will, or if not, in accordance with the New Mexico laws of intestate succession.
Do you need an attorney?
A person filing a probate may file "pro se" (without an attorney) or hire an attorney to assist them. THE PROBATE JUDGE OR THEIR STAFF CANNOT PROVIDE LEGAL ADVICE. If you are uncertain about a probate matter, you may consult with an attorney or be represented by an attorney. If you choose to file "pro se", probate form packets are available at the probate office for a fee of $5.00 or www.nmcourts.com.
What is the jurisdiction of the Probate Court?
The probate court presides over uncontested informal proceedings as directed by the limitations of the New Mexico state law. The Probate Court may:
- Admit wills into informal probate
- Appoint a personal representative to act on behalf of the estate
- Appoint a special administrator when needed
- Appoint a successor personal representative if necessary
The Probate Court has "concurrent jurisdiction" with the district court and, therefore, the district court also has jurisdiction over the above mentioned matters. This means that a person can file an informal probate proceeding in either probate court or district court (section- 45-3-609,-610). Only the district court has jurisdiction over formal probate proceedings or in any matter where there is a dispute. Only the district court has jurisdiction over a probate proceeding filed more than 3 years after the death if there is a will. Only the district court has jurisdiction over any contested matters. Only the district court can administer a trust.
Where should a probate be filed?
It is appropriate to file a probate in San Miguel County if the decedent was domiciled here at the time of their death or if San Miguel County was the permanent abode of the decedent. A probate can also be filed here if the decedent lived outside of New Mexico but owned property in San Miguel County.
When is a probate needed?
Not every estate requires a probate. Often it depends on how the decedent’s assets were titled or whether someone needs legal authority to act on behalf of the estate. Some examples of matters that may require a probate are:
- Changing the title to real property or personal property, such as bank accounts or stocks.
- Dealing with creditors
- Obtaining medical records
- Filing taxes if necessary
What is the time frame for filing a probate?
A probate cannot be filed until 120 hours (5 days) after death and may be filed up to 3 years after death in the Probate Court either with or without a will. If there is a will and it has been longer than 3 years, the matter must be filed in the District Court. If there is a will and a trust in place, then the matter must be filed in the district court.
What is the fee for filing a probate in the probate court?
The filing fee in probate court is $30.00.
What the Probate Judge and staff CANNOT do:
Neither the Probate Judge nor their staff can provide legal advice of any kind. Legal advice can only be given by a licensed attorney. The Judge or their staff cannot fill out the forms for you or assist you in filling out the forms, that includes preparation of deeds for any real property that requires transfer. Neither the Probate Judge nor their staff can recommend an attorney to you.
