the Probate Judge—Value of Probated Estates
Rudd, appeared June 16, 2005, 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: Is there a value above which a lawyer must be retained and below which
a lawyer is not required in probate court? My question was prompted by a living
trust salesman who had a book about living trusts recommended by AARP (so
he said) that listed the cutoff value of estates requiring an attorney to
probate the will. A table in the book listed New Mexico at $30,000 and Texas
at $50,000. Additionally, the salesman's presentation called for immediate
action on our part, which scared us off. W.W.W.
Your question raises several misconceptions that I am happy to set straight.
And kudos to you for trying to get accurate information before taking "immediate
action!" I wish everyone were as cautious as you.
There is no value above which a lawyer must be retained for opening a probate
case in the probate courts. For example, if a decedent owned a house, stocks,
and bank accounts valued at $1,000,000, one could file a probate in the probate
court, with or without an attorney's help. A probate can also be filed in
the district courts, but usually people hire attorneys to do this.
Whether or not people ought to handle their own probates without an attorney's
help is an entirely different inquiry. However, the New Mexico Supreme Court
has approved 'do-it-yourself' probate forms, which can be used in the probate
courts for intestate (no valid will exists) or testate (a valid will exists)
cases. These forms can be downloaded for free from our court's web site: www.bernco.gov/probate-judges-office/
You can also purchase a printed copy of the forms for $5.00 from any probate
As useful as the forms are, the instructions with the forms do not address
every issue that may arise in a probate case. For example, if real property
(land, house, ranch, mineral rights, etc.) is part of an estate, additional
paperwork must be done. The forms do not address this issue.
After reviewing the packet of probate paperwork and the responsibilities of
serving as personal representative of an estate, many people decide to hire
an attorney to help them with at least part of the probate. But the complexity
of an estate, not its value, often motivates people to hire an attorney.
Remember, too, that trusts are not the only way to avoid probate. How a decedent's
property is titled determines which assets require a court probate proceeding.
Assets held in joint tenancy, payable on death accounts, transfer on death
accounts, life insurance policies and individual retirement accounts with
named beneficiaries, and trust property typically pass to the surviving joint
tenant or surviving named beneficiary without a probate proceeding. If all
of the assets of an estate are titled using one of the above methods, a court
probate would probably not be necessary, no matter what the value of the estate
If an estate contains assets worth over $30,000 that are titled in the decedent's
sole name or as "tenants in common," those assets
need to be probated.
The $30,000 figure mentioned in your seminar may have been referring to New
Mexico's special "short cut" law for small estates. If an estate
contains only personal property and the total value of that personal
property is $30,000 or less, an "affidavit of successor in interest"
can be used to transfer ownership without a court probate. This sworn, notarized
affidavit applies to bank accounts, stocks, bonds, mobile homes, cars, and
other personal property, but does not apply to land, houses, or other real
2005, Albuquerque Journal, All Rights Reserved