Ask the Probate Judge—Priority to Serve as Personal Representative
Rudd, appeared July 3, 2003, 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 mom died and my dad got everything as the surviving joint tenant. Then my dad died without a will. His estate needs a probate. There are nine of us children; three have died. Your staff told me that everyone must agree on who acts as personal representative of my dad's estate. Why is this?
A personal representative of an estate must be at least 18 years old, and not otherwise disqualified to serve. By law the Probate Court only has jurisdiction to appoint the personal representative who has the highest priority to serve.
If your dad had a valid will, the person with first priority for appointment as personal representative would be the person nominated in your dad's will. When a person dies intestate without a valid will, New Mexico law determines the priority for appointment of personal representative.
In intestate estates, the person with first priority for appointment is the decedent's surviving spouse. If there is no spouse, then other heirs of the decedent have the next highest priority. Heirs are persons "…who are entitled under the statutes of intestate succession to the property of the decedent."
Absent a spouse, the heirs are the decedent's children, who have equal priority for appointment as personal representative. If one or more of the decedent's children has died, the children of the deceased children also have equal priority for appointment.
If there are no spouse or children, the decedent's surviving parents are the heirs with equal priority for appointment.
If there are no surviving spouse, children, or parents, then decedent's brothers and sisters are the heirs and have equal priority for appointment. If one or more of the decedent's siblings has died, the children of the deceased sibling(s) also have equal priority for appointment.
More distant relatives might qualify if none of the above heirs exist. Heirs have equal priority for appointment as personal representative, regardless of where they live.
In your example, in order to file the probate in the Probate Court, the six surviving children and all children of the three deceased children must agree on who will serve as personal representative. Each must sign a written consent that is filed with the court. The person they ultimately agree on may or may not be a family member.
If the heirs cannot all agree on who will serve as personal representative, the case cannot be filed in the Probate Court. Instead, the appointment must be made in a formal probate proceeding in the District Court.
This problem could have been avoided if your dad had a will nominating a personal representative. That person would have had the highest priority to serve without any agreement among family members. Your question illustrates yet another reason why having a will or trust is a good idea.