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Court of Wills, Estates & Probate

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

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Right to Inherit

1:03 PM
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: My grandpa died recently. He was not married but lived with a lady the past ten years. His only child, my mom, died before he did. I was estranged from my grandpa, but I heard he had a will. How do I find out if I inherited anything? I'm an only child too. Anonymous

First off, remember that inheritances are not a right or entitlement. A competent adult has the right to leave his or her property, including houses, bank accounts, pensions, stocks, vehicles, jewelry, etc. to whomever he or she wishes.

Single people may leave their assets to whomever they wish, as long as they do not have minor children who depend upon them for support. People have no legal obligation to leave their assets to their adult children or grandchildren.

If your grandfather had a valid will, that document controls the disposition of property held in his sole name. His will could have designated you or other relatives, friends, a church, synagogue, educational institution, or favorite charity as recipients. If he added his lady friend's name onto deeds or accounts, then those assets would pass directly to her. His will would not affect property that passed directly to the lady friend.

If a probate case was filed, then those records are available to you. The personal representative has a duty to notify you when a probate case is filed because you are your grandfather's heir. Heirs are entitled to notice of a probate case even if they are not named to inherit in the will.

You could call the district court and probate court in the county in which your grandfather lived to see if a probate case has been opened.

Don't be surprised if you were not included in your grandfather's will. In my experience, estranged relatives often receive nothing in their deceased relatives' wills.

Q: Must a living trust be recorded with the county clerk whether or not real property is transferred to it? Must a living trust be filed with the Probate Court? Must property deeds transferring property to a living trust be filed with the Probate Court? Your answers to these questions will be appreciated.

I know of no requirement to record a living trust with the county clerk. New Mexico's Uniform Trust Code does not contain such a requirement. 

One purpose of trusts is to avoid probate. If a trust is properly set up and the settlor's property is properly transferred to the trustee of the trust, no court probate should be necessary. 

If a dispute arises about the validity or terms of a trust, the trustee's management of the trust, or beneficiaries' shares, the district court is the proper forum to resolve trust disputes. Under New Mexico's laws, probate courts do not have jurisdiction over trusts. So, no, a living trust is not filed with the probate court.

Property deeds that transfer property to the trustee of a living trust must be recorded with the county clerk of the county where the property is located, not the probate court. The original deed is taken or mailed to the county clerk's Recording and Filing Office. The clerk makes a photocopy of the deed and records the deed into the public records. There is a $9 charge to record a one-page deed. Once recorded, the deed is available to the public, title companies, and others to inspect and/or copy. The deed does not need to be filed with the district court unless there is a problem involving the property.

© 2006, Merri Rudd & Albuquerque Journal, All Rights Reserved

Appeared February 23, 2006, Albuquerque Journal, Business Outlook 
Reprinted with permission

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