Ask the Probate Judge—
Two Courts & Supervised Personal Representatives
Rudd, appeared December 12, 2002, 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 questions are: 1) Why would a probate case be assigned to District Court and a District Judge when there is a Probate Court and a Probate Judge? 2) In New Mexico, when a personal representative becomes a supervised personal representative, who supervises the personal representative and how is the supervision done?
District courts and probate courts have what is called "concurrent jurisdiction" over informal probates. Either court can preside over an informal probate, which involves paperwork only. No notices are sent and no hearings are held before the judge signs an order appointing the personal representative.
If an informal probate is
desirable, the applicant or the applicant's attorney decides whether to file
the probate in district or probate court. The filing fee in the probate court
is $30; in district court $122. Sometimes deciding where to file is merely a
matter of personal preference.
Formal probates are another story. Only the district court has jurisdiction over formal probates. A hearing is set and notice is given to all interested parties at least fourteen days ahead of the hearing. The district court judge presides over the hearing and everyone involved has an opportunity to speak before the court appoints the personal representative or closes the estate.
Sometimes an applicant wishes to open a probate informally, but close the case formally. Since probate courts have no jurisdiction over formal proceedings, such a hybrid case should probably start in the district court. Otherwise, if an applicant started the case informally in probate court and transferred it to district court for a formal closing, two filing fees would be paid.
By the way, district court judges are lawyers who are required to practice law at least six years before becoming judges. Probate judges must be eighteen or older and New Mexico residents. Most probate judges are not lawyers.
District courts have what is called "exclusive original jurisdiction" over certain types of probate cases. In addition to exclusive jurisdiction over formal probates, only the district court may handle cases involving the estates of missing persons, trusts, contested probates, and supervised administrations.
In a supervised administration, the district court retains continuing authority over an estate after a formal hearing. A supervised personal representative is responsible to the district court and to interested persons. The district court judge may give certain directions about how the personal representative is to handle the estate or impose written restrictions on the personal representative's powers.
Supervised personal representatives must obtain court approval before distributing the assets of an estate. They must also file an accounting with the district court at least annually. The district court may require supervised personal representatives to submit to a physical check of the estate. Supervised probates are unusual and are used if the court finds it necessary to protect persons interested in the estate.
© 2002, Merri Rudd & Albuquerque Journal, All Rights Reserved