the Probate Judge—Intestate Problems
Rudd, appeared July 28, 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: My granddad
was married, but Grandma died first. They had three children, all of whom
are deceased, including my dad. One deceased child had no children, but my
father and his brother each had two children before they died. My brother
and I have had no contact with the other two children for over twenty years
and don't know where they are. My granddad recently died without a will. My
brother and I want to split everything equally between us. Is this OK? Who
inherits and who should be the executor? Anonymous
While I cannot give legal advice, I can tell you which New Mexico laws apply.
If a person dies without a surviving spouse or a valid will, the decedent's
surviving children are first in line to inherit under the law of intestacy.
Intestate estates are those without valid wills.
Intestate law calls the children of a deceased person the "decedent's
descendants," and the descendants inherit equal shares of the estate.
If one child has died, that child's share passes to his or her children. If
more than one child has died leaving children, then all of the deceased children's
children split those shares equally. This division is known as "by representation,"
sometimes called "per capita."
The law requires the names and addresses of all heirs of the estate to be
listed in the initial application to open the probate. You must make a diligent
search to locate them, because all the heirs are entitled to notice and to
receive their share of the estate.
In your example, all four grandchildren are entitled to inherit equal shares
of your grandfather's estate, i.e., one-quarter each. If your grandfather
had created a will leaving his estate to you and your brother, my answer would
In intestate estates, if there is no spouse, then the heirs of the decedent
have the next highest priority to serve as personal representative, which
is the term used in New Mexico instead of "executor." All heirs
have equal priority for appointment as personal representative, regardless
of where they live.
Because your grandfather died intestate, his four grandchildren have equal
priority to serve as personal representative. They will have to agree on who
will serve as personal representative if you want to open an informal probate
in the probate or district court. 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 you cannot find the other two grandchildren or you all cannot agree on
who will serve as personal representative, the case must be opened as a formal
probate proceeding in the district court. In a formal probate, the district
court judge would not appoint a personal representative until holding a hearing
after notice is given to all interested parties.
Having a will would have allowed your grandfather to select a personal representative
of his choice to handle estate business. That person would have had the highest
priority to serve without any agreement among family members. Your question
illustrates why having a will or trust is a good idea.
While my answer probably does not tell you what you hoped to hear, perhaps
it can help other readers to avoid similar problems.
2005, Albuquerque Journal, All Rights Reserved