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Court of Wills, Estates & Probate

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

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Intestate Problems

11:51 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: 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 be different.

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. 

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