By Merri Rudd, appeared July 27, 2006, Albuquerque Journal, Business Outlook
Reprinted with permission

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: Can a 17-year-old married woman be the personal representative of her dead husband's estate?

Emancipated minors are persons over age sixteen who have entered into a valid marriage, or are on active duty with any U.S. armed forces, or have received a declaration of emancipation from a court. So technically, the 17-year-old woman is 'emancipated' under New Mexico's law.

The law considers emancipated minors to be over the age of majority for particular purposes, such as buying or selling property, enrolling in college, or making health care decisions. Creating a will, serving as personal representative, and registering to vote are not included on the list of rights that New Mexico grants to emancipated minors.

I believe that, in New Mexico, an emancipated minor cannot make a will or serve as personal representative of an estate until he or she reaches the age of eighteen. The legislature could amend the law to allow otherwise.

The news is not all bad, however. The probate court has jurisdiction to appoint the personal representative who has the highest priority to serve. If the husband had no will, the wife has priority to serve as personal representative. The law says that a person who has not reached the age of majority and who would be entitled to serve as personal representative but for her age, may nominate a qualified person to act as personal representative and thereby confer her priority for appointment onto her nominee.

This means that the 17-year-old wife could nominate whomever she wants to serve as personal representative of her deceased husband's estate-her parent, his parent, his best friend, her best friend, or any other trusted individual who is 18 or older.

In the alternative, she could wait until she turns 18 to file her husband's probate case. This leads perfectly to the next reader's question.

Q: My father died in November of 2005. Is it too late to file in probate court? S. A.

The general rule in New Mexico is that a probate case cannot be started until 120 hours (5 days) after someone dies and should be opened within three years of a person's death.

If three years or less have passed since a person died, you can open a probate for estates with or without a will in either the probate or district court. So, no, it is not too late to file your father's probate in either court, assuming that his estate requires a probate.

A few exceptions to the three-year rule exist. One exception allows an informal appointment of personal representative more than three years after a person's death to confirm title to the appropriate successors. The personal representative has no right to possess estate assets other than to confirm title. Creditors' claims, other than expenses of administration, cannot be presented against the estate at this late date.

This type of informal appointment can be filed in the probate or district court if the person died intestate (without a valid will). If a decedent had a will and it has been more than three years since death, New Mexico law requires a formal testacy proceeding. Only the district court can preside over formal probates.

Some people purposely wait one year or more to file a probate case to avoid creditors' claims, which are generally barred one year after a decedent's death.

© 2006, Merri Rudd & Albuquerque Journal, All Rights Reserved