Ask the Probate Judge

Ask the Probate Judge—Do It Yourself Probates

By Merri Rudd, appeared November 29, 2001 Albuquerque Journal, Business Outlook

Reprinted with permission

Q: New Mexico is said to have a "Simplified" Probate Code. I understand that a lawyer is absolutely required to represent one's case in Probate. Many people have the intelligence to do their own taxes, do their own investing, and manage their lives for 60 - 80 years. Why can't they see a parent's estate through probate? J.B., Las Cruces

Ah, but they can! Who told you otherwise? As I wrote in an earlier column, you are free to draft your own will. You are also free to take a probate case through court. Maneuvering through District Court may be more difficult without an attorney, but the New Mexico Supreme Court specifically wanted to help the public use the Probate Courts without an attorney's help.

That's why the Supreme Court approved 'do-it-yourself' Probate Court forms, which can be used for probates in intestate (no valid will exists) or testate (a valid will exists) cases. These forms can be downloaded for free from this web site:
http://cochiti.nm.org/cgi-bin/noauth/prod/download/download.cgi/download/n/attorney. Scroll down the forms list until you come to the 4b series. The 4b series includes every possible do-it-yourself probate form, not all of which every probate case needs. Much depends on whether a valid will exists. You can also purchase a hard copy of the forms for $5.00 from any Probate Court.

As useful as the forms are, the instructions do not answer every question 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 needs to be done. The forms do not address this issue.

Therefore, after reviewing the packet of paperwork involved 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.

Sometimes the decedent's heirs or devisees must probate only a portion of the estate. How the decedent's property is titled determines which assets require a court probate proceeding. For example, 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 pass automatically to the surviving joint tenant or surviving named beneficiary and do not pass through a probate proceeding. If all of the assets of an estate were titled in one of these ways, a court probate would probably not be necessary.

So, do it yourself? You bet. You're allowed to, at least. Wise or fun to do so? An entirely different inquiry.