Ask the Probate Judge—Newly Discovered Property
Rudd, appeared May 27, 2004, 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: My father's probate was closed in 1990 in the Dona Ana Probate Court. We have just discovered some bonds that were not transferred during his probate. Can the old probate be re-opened? O.G., Las Cruces
If the bonds were not listed on the original inventory of estate assets, the bonds are considered "newly discovered property." New Mexico's law states, "If other property of the estate is discovered after an estate has been settled and the personal representative discharged, or after one year after a closing statement has been filed, the district court, upon petition of any interested person and upon notice as it directs, may appoint the same or a successor personal representative to administer the subsequently discovered estate."
Applying this rule to your fact pattern, since it has been more than one year since the verified closing statement has been filed, a case will have to be opened in the district court. Only the district court has jurisdiction to appoint a successor personal representative to administer the newly discovered bonds.
A different scenario could occur if property was listed in an inventory in the decedent's original probate, but for some reason proper title was not transferred or another mistake occurred before the case was closed. In that instance, the personal representative can reopen the old case in the original court where the case was opened. That court can reappoint a former personal representative or appoint a successor personal representative to fix the mistake.
For example, suppose a probate for an estate with a will was properly opened in the probate court. An inventory of the decedent's property was prepared and filed with the court. The personal representative failed to complete a personal representative's deed for one lot listed on the inventory. The estate was closed. Thirty years later, when the property is about to be sold, the title company discovers that clear title was never passed to the lot.
This case can be reopened in the probate court, if additional court paperwork is submitted. If the former personal representative is deceased, the court should look at the will to determine who is next in line to serve. After being appointed by the court, the personal representative will have legal authority to complete the personal representative's deed and clear the title to the lot.
Sometimes an estate is not officially closed in a probate court. If property is discovered years later, because the case was never closed, the personal representative, if still living, continues to have authority to act. If a successor personal representative is needed, additional paperwork must be filed. The court will issue certified Letters of Administration or Letters Testamentary, with a current date, to the personal representative who can then distribute the newly discovered property.
This approach may only work in probate court. Many district court judges close estates themselves if no action has occurred in the case in a long time.
© 2004, Merri Rudd & Albuquerque Journal, All Rights Reserved