the Probate Judge—Missing Heirs
Rudd, appeared April 27, 2006, 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: Our law firm is handling an estate of a decedent who had a will that leaves
the assets in equal shares to the decedent's five adult children. We have
searched for a year and have been unable to locate one of the children. Can
you tell us what happens to that child's share of the estate?
This question has
come up several times at the Probate Court. Many people think that the other
four children end up sharing the missing child's share of the estate. But
my brilliant court administrator showed me a New Mexico law that says otherwise.
Section 45-3-914 of New Mexico's Uniform Probate Code states, "If an
heir, devisee or claimant cannot be found, the personal representative shall
distribute the share of the missing person to his conservator, if any. Otherwise,
the personal representative shall sell the share of the missing person and
distribute the proceeds to the state treasurer as prescribed by the Uniform
Unclaimed Property Act [UUPA]."
If a court has not declared a missing person dead or appointed a conservator
for him or her, then UUPA applies. I studied the 31 sections of UUPA, which
UUPA only covers tangible and intangible property, such as bank accounts,
the contents of safe deposit boxes, stocks, insurance policies, and annuities.
UUPA does not allow the state to accept real property, guns, vehicles, animals,
boats and other objects.
New Mexico's taxation and revenue department is charged with receiving and
managing unclaimed property. Property is presumed abandoned if it is unclaimed
for a certain amount of time. These time periods vary from one to fifteen
years depending on the type of property. For example, the time period for:
- utility deposits, one
- certain IRAs, three years;
- CDs and stocks, five
years, in general;
- traveler's checks, fifteen
years after issuance;
- money orders, seven years
The holder of abandoned property must prepare reports and publish notices
about the abandoned property. After the specified time periods have elapsed,
the holder of the property must pay, deliver or arrange the payment or delivery
of unclaimed property to the taxation and revenue department.
Upon payment or delivery of property, the state assumes custody and responsibility
for the safekeeping of the property. Taxation and revenue must deposit the
funds as set out in the law, reserving a certain amount for claims and keeping
records of the property received.
UUPA does not specifically address inheritances, but does address amounts
distributable from trusts or custodial funds. Since the probate code directs
missing heirs' shares to be governed by UUPA, that is the route to take unless
a conservator has been appointed for the missing person.
If a person finds out that the state is holding their property, the person
can file a claim with the taxation and revenue department. Once the department
verifies the claimant's identity and right to the property, the department
will allow the claim and must pay it within 30 days.
You may wonder why the Probate Code directs a missing recipient's share to
be held by a conservator or the state instead of being distributed to the
decedent's other heirs. One reason may be that if the law allowed other heirs
to split a missing person's share, the heirs might withhold information about
a person's whereabouts to gain a larger share of the estate. Entrusting the
missing person's share to a neutral agency ensures that the share will be
available if the person is ever located.
If you have a person's social security number, the Internal Revenue Service
and Social Security Administration can forward notice of an inheritance to
the recipient at the last address on record.
2006, Merri Rudd & Albuquerque Journal, All Rights Reserved