By Merri Rudd, appeared November 30,, 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: You and your court have established an excellent probate system here in New Mexico with on-line forms and a courteous, helpful staff. You have been consistent in your responses that the way to avoid probate is in the titling of property and assets.

Many of us were "brought up" on the best selling book of the late 1960s, "How to Avoid Probate." That book presents 200 pages of forms and provocative statements such as this one which opens Chapter 2: "In most areas of this country the probate procedure is a scandal, a form of tribute levied by the legal profession upon the estates of its victims, both living and dead." From that same chapter: "Most probate judges earn more than the governors of their states - indeed, one Connecticut judge has an income 20% greater than that of the Chief Justice in Washington!"

Could you discourse a little as to why probate is not a scandal in New Mexico? M.B.

Thanks for the accolades and for giving me a good laugh! I am proud of my staff and the work we do to assist the public and attorneys who use the probate court.

You should thank the New Mexico Supreme Court, not me, for approving the do-it-yourself probate forms. These forms have enabled thousands of probate applicants to file probate cases without the help of an attorney. Some attorneys also use these forms in their practice.

New Mexico's probate courts, one per county, are unique because they are part of the state judiciary, but are housed and funded by each county. Only a few of us probate judges are lawyers, and we all serve part-time. As county officers, we are limited to two consecutive four-year terms.

I agree that probate is not a scandal in New Mexico. New Mexico's Uniform Probate Code, at least parts of which have been adopted by 17 other states, contains straightforward requirements and procedures for probating an estate.

As you point out, how an asset is titled controls who receives the property after the owner's death. Assets held in joint tenancy, "payable on death" accounts, "transfer on death" accounts, life insurance, transfer on death deeds, and trust property should pass to the named survivor or beneficiary without a court probate proceeding. Probate may not be necessary for many of a decedent's assets.

Probates are usually only scandalous when family members become irreparably mired in fighting over estate assets; accuse each other (sometimes rightfully so) of mismanaging the estate; and raise other issues that create protracted litigation, expensive attorney fees, and permanent estrangement among recipients.

Fortunately, my court lacks jurisdiction over these types of cases. State district court judges bear the brunt of the 'scandals' that the author of your probate book envisioned and despised.

Your quote "Most probate judges earn more than the governors of their states" made me laugh out loud. The current annual salary of our governor is $110,000. This is not a breach of his privacy; the salaries of all elected state officials and judges are set out within New Mexico's laws. District court judges' salaries are about $103,000 per year.

Probate judges' salaries in New Mexico vary depending upon county size. Class A county probate judges like myself currently earn $25,061 annually. Although other Class A county probate judges handle 100-200 cases a year, and I will handle about 400 cases in 2006, we earn the same $25,061. Annual compensation for other county probate judges ranges downward from $17,412 to $3,048 or less as determined by each county's commission.

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