Why You Need To Probate Your Loved One’s Estate

Probating a WillWinding up the affairs of a loved one who has passed on is never the most pleasant endeavor when you are in the midst of grieving his or her loss. However, the sooner the process is started, the easier it will be and the sooner it will be over. Probate is the legal process by which your deceased loved one’s debts are paid and her property is distributed to her survivors. The following details the steps involved in, and the importance of, the probate process in New Mexico.

When should an estate be probated in New Mexico?

If a person resided in New Mexico or owned real property located in New Mexico at the time of his or her death, a probate should be opened in New Mexico.

What are the steps involved in a probate?

(1) A petition to be appointed as personal representative or administrator must be filed with the court, and a notice must be sent to all interested parties.

(2) After a hearing, the court will typically issue an order appointing the petitioner as personal representative or administrator of the estate and Letters Testamentary or Letters of Administration authorizing the petitioner to take control of the assets and affairs of the estate.

(3) With the Letters Testamentary, the personal representative may begin collecting and inventorying the estate’s assets, including bank accounts, insurance policies, personal property and real property.

(4) The personal representative is also responsible for notifying creditors by letter and/or publication of the passing of the deceased, which starts the clock running on the deadline for creditors to make claims against the assets of the estate.

(5) After gathering the assets and determining the debts of the estate, the personal representative distributes the required statutory personal and family allowances, if applicable, satisfies the debts of the estate, and distributes the assets of the estate to the beneficiaries.

Who can be appointed as personal representative?

If your loved one has left a will naming a willing and able personal representative, the court will typically appoint that person. If the person named in the will is unable or unwilling to serve, or if your loved one has died intestate (without a will), any person interested in the deceased’s estate can petition to be appointed personal representative. Usually a spouse or child of the deceased will petition the court to be appointed personal representative, but any heir or even creditor is an “interested person” authorized to petition the court to be named personal representative.

Why is it important to go through the probate process?

Only through the probate process can you legally transfer title of the deceased’s property to the intended beneficiaries. All too often, a child takes up residence in the deceased’s home without having legal title transferred to him or her by a personal representative. Even though it may be undisputed that Mom wanted her child to have the home, the home still legally belongs to the deceased’s estate–not to the child. An unknown creditor, whose claim might have been foreclosed if the estate were probated, could come out of the woodwork, and the home could be available to satisfy the claim. The deceased may owe taxes, which would have been addressed by the personal representative during the probate process, and a taxing authority could impose a lien against the property. Suddenly, the small amount of money the child saved by foregoing the probate process costs the child the house that his or her Mom wanted to leave to the child.

Perhaps the most important reason to probate an estate is to assure the orderly transfer of assets from one generation to the next. Feelings of unfairness often arise when one sibling perceives that his or her parent left more to another sibling. The supervised distribution of assets through the probate process adds legitimacy to the transfers of property, which will reduce the chances of litigation over how assets are distributed. Additionally, proper administration of the estate assures that the intended beneficiaries will obtain the legal title to property necessary, in turn, to pass that property to future generations.

How much does it cost to probate an estate?

The attorney fees and other professional fees, such as those charged by accountants, depend on the complexity of the estate. The fewer debts owed by the deceased and the fewer assets to be distributed, the lower the cost of administering the estate tends to be. In any event, the cost of probating your loved one’s estate will almost always be less than the cost of the legal nightmares that result from foregoing the probate process.

If you are in need of an attorney to help you probate a will and/or administrate a loved one’s estate in New Mexico, be sure to contact a probate attorney as soon as possible. Probating a will should not be procrastinated.

About tmortimer:

Tim Mortimer is an attorney and partner of Slingshot, LLC, the parent company of Business Law Southwest, LLC, and Law 4 Small Business, P.C. He is licensed to practice law in New Mexico and Arizona, and focuses on transactional work, contracts, mergers and acquisitions, commercial real estate and more.

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