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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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Missing Heirs

10:18 AM
Merri Rudd

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 is complex.

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 year;
  • certain IRAs, three years;
  • CDs and stocks, five years, in general;
  • traveler's checks, fifteen years after issuance;
  • money orders, seven years after issuance.
    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 

??Appeared April 27, 2006, Albuquerque Journal, Business Outlook Reprinted with permission

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