By Merri Rudd, appeared December 18, 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 divorce became final ten years ago. My ex-spouse and I did not have any children during the marriage. In the divorce decree/settlement I kept our house and my retirement. Since I have no children, in the event of my death, what would happen to all my assets? Would the state take over everything I own? I do have nine brothers and one sister still alive. Would my assets automatically go to them? Please tell me what I need to do to keep the state from getting all my assets. S.M., Bernalillo

The answer to your question depends upon two things: 1) whether or not you have a valid will, and, 2) how your property is titled. To answer your question, I'm going to assume you have no will and that your property is titled in your sole name.
If you have a will, then whomever you designate in your will should receive your property. Recipients could be family members, friends, charities, etc. It's entirely up to you.

If you have no will, then your question becomes Myth #11: If I die without a will, the state will get everything. Myth 11 is not true because New Mexico's laws of intestate succession set out who will receive your property. Intestate means dying without a valid will.

In your case, since you have no spouse and no children, your surviving parents are next in line to inherit under intestate law. If you have no surviving parents, then your brothers and sisters (siblings) inherit equal shares of your intestate estate, by representation.

If one sibling has died, that deceased sibling's share passes to the deceased sibling's children, if any. If more than one sibling has died leaving children, then all of the deceased siblings' children split those shares equally. This division is known as "by representation," sometimes called "per capita." If the deceased sibling has no children, then your remaining surviving siblings inherit that share.

As your question illustrates, most people have some family members. A person's intestate estate passes to the state only if no takers (relatives) exist. In that case the property escheats to the state and becomes part of the "current school fund" per the New Mexico Constitution. If a decedent had absolutely no living relatives, a will or trust stating who should receive the property would prevent intestate property from passing to the state.

Remember that New Mexico's laws on intestate succession only provide for blood relatives, so if you wish to leave something to your ex-spouse, charity, a school, friends, or other non-family members, a will or trust would be necessary.

Having a will would also let you select your personal representative. If you die intestate, your nine brothers and sister will have to agree among themselves who will serve as your personal representative if they want to start an informal probate. In the spirit of promoting peace and harmony, resolve to make a will stating your wishes in the new year. Happy holidays to all!


© 2003, Merri Rudd & Albuquerque Journal, All Rights Reserved