Probate is the legal process of petitioning a court to grant you the authority to administer or obtain control of a deceased person’s estate—usually a relative, loved one, or close friend (if you were personally named in that person’s will). Once that authority is obtained, you can distribute assets according to the decedent’s will or transfer assets owned by the decedent even if they died intestate (without a will).
Most probate proceedings will be informal. That means that the probate process will be relatively straightforward with a designated personal representative, little to no conflict between beneficiaries (even if there are multiple), and few assets that need to be transferred. The judge may or may not set a hearing depending on the application and the circumstances of the situation. The informal proceeding should take place relatively soon after the decedent has passed (usually less than three years).
So, when does someone need a formal probate proceeding?
A formal probate proceeding is, “litigation to determine whether the decedent left a valid will.” NMSA § 45-3-401(A). During a formal probate proceeding, the applicant will usually petition the court to request a hearing, set aside an informal probate to probate a will, or for an order that a decedent died intestate. This can happen in special circumstances. For example: an heir was left out of the will; there is suspected undue influence over the decedent when he or she drafted their will or changed it; a missing child or relative appears; or there are conflicting wills.
As the name indicates, formal probate proceedings involve the court and may continue to involve the court until the end of the probate process. However, not all circumstances that require formal probate will be litigated matters. Another type of formal probate proceeding can take place several years after the decedent has passed.
Under NMSA § 45-3-108(A)(5), “a formal testacy proceeding may be commenced at any time after three years from the decedent’s death for the purpose of establishing an instrument to direct or control the ownership of property passing or distributable after the decedent’s death from one other than the decedent when the property is to be appointed by the terms of the decedent’s will or is it to pass or be distributed as a part of the decedent’s estate or its transfer is otherwise to be controlled by the terms of the decedent’s will.”
All that to say, if it has been more than three (3) years since the decedent passed, you can apply for a formal probate proceeding with the court to move unclaimed property, newly discovered property, or for a claim/settlement for the decedent’s estate. Filing a formal petition may require court involvement or a hearing, but the judge can also determine that a hearing is not necessary.
This blog post is an informative but limited explanation of some of the intricacies of the probate process. If you have questions about your probate circumstances, call our firm today to speak with one of our experienced attorneys. Our attorneys are licensed in NM. Therefore, the law in this post is NM law. Please check your state and jurisdiction for the laws pertaining to your area.
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