Ask the Probate Judge—Small CD and Probate
By Merri Rudd, appeared May 2, 2002, Albuquerque Journal, Business Outlook
Reprinted with permission
Q: My husband recently died, and left one C.D. (worth about $35,000) without completing the beneficiary line. The bank has informed me that this one C.D. must go through probate. Is this something I can do myself by obtaining a form, or must I hire an attorney? Are there any shortcuts? W.M., Albuquerque
A: If the C.D. was titled in your husband's sole name, a simple probate in Probate Court will transfer ownership of it. You can complete your own probate forms. The Probate Court web site is www.bernco.gov (click on "probate judge," then "probate forms"). The do-it-yourself forms are available for free on our web site or, for $5.00, you can purchase a packet from the Court. If your husband had a will, you should also present his original will to the Court.
A "Welcome to the Probate Court" brochure posted on our web site gives general information about the process. Call the Court at 768-4247 with additional questions you have about opening a probate case.
For others in similar situations, New Mexico has a special "short cut" law for amounts of $30,000 or under (this will not help your situation). If your husband’s CD had been $30,000 or less, an "affidavit of successor in interest" would transfer ownership without a court probate. This law applies to bank accounts, stocks, bonds, mobile homes, cars, and other personal property, but does not apply to land, houses, or other real property.
An affidavit is a sworn, notarized statement. A person entitled to receive a decedent's personal property can sign an affidavit of successor in interest if:
The successors in interest would be those named in a will or the intestate heirs if no will exists. The successors would sign the affidavit in the presence of a notary public and present the affidavit to the individual, corporation, bank, or agency holding the property owned by the decedent.
This affidavit is most often used to collect funds held in a bank account or to transfer title to a decedent's motor vehicle or mobile home to the successors. The New Mexico Motor Vehicle Division has its own affidavit form for successors to sign. Other types of personal property owned by a decedent, such as stocks or bonds, can also be collected with this affidavit.
If the personal property is located outside New Mexico, the out-of-state company might be reluctant to honor the affidavit. However, New Mexico law protects all companies that rely on the affidavit by relieving them of liability if they transfer property through this affidavit.
© 2002, Merri Rudd & Albuquerque Journal, All Rights Reserved