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Court of Wills, Estates & Probate

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

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No Takers

12:01 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: What could be done in the case where someone dies and there is no known next-of-kin and there is property involved? Can you still petition the courts to be appointed special administrator? This person owned a trailer, two lots, a bank account, a car and an investment account with a local investment company. I am interested in buying the house and lots. No one is taking care of the trailer. As far as I know there has not been any funeral done.

We checked with the bank and the investment company and there is no listed next-of-kin and there were no papers in the home referring to any next-of-kin or what was to be done in the event of death. We asked the bank if there was a safe deposit box and there is not one. He was divorced 25 years ago. P.R.S., Albuquerque

You raise an issue that occurs rarely-a person dies intestate (with no valid will) and no takers (relatives). New Mexico's probate code provides, "If there is no taker under [the intestate succession provisions of the Uniform Probate Code], the intestate estate passes to the state." In legal terms, the property "escheats" to the state.

New Mexico's constitution says that the net proceeds of property that come to the state by escheat, together with certain forfeitures, fines, and rentals, constitute the current school fund of the state.

Only "interested persons" can be appointed as special administrators of an estate. "Interested persons" include heirs, devisees, children, spouses, creditors, beneficiaries and any others having a property right in or claim against a trust estate or the estate of a decedent.

I do not think you qualify as an interested person just because you are interested in purchasing an asset of the estate. Nor do you have priority to be appointed as personal representative of the decedent's estate. You would also have a conflict serving as personal representative if you want to purchase estate assets. 

I talked to the state treasurer's office and taxation and revenue department and asked if they could open a probate, but apparently state agencies do not usually serve as personal representatives.

The district court in a formal probate proceeding could appoint a personal representative. District courts, unlike probate courts, have more power and discretion to appoint a personal representative who does not have priority to serve.

If the state of New Mexico is truly the "taker" in this case, someone could open a probate and ask to be appointed as personal representative or to have a personal representative appointed. A creditor of the decedent, such as a funeral home, could open a formal probate in the district court. Or you could open a formal probate and ask the district court to appoint a neutral personal representative to handle the decedent's estate.

Once a personal representative was appointed to liquidate decedent's estate, you could make an offer to buy part of the decedent's property. It would be up to the personal representative to accept or reject any offers.

A diligent search would have to be made for the decedent's heirs. Any monies left after paying estate expenses would be delivered to the state Taxation and Revenue to hold in custodianship under the Unclaimed Property Act. I will address aspects of that law in my next column.

In reality, most people have some family members, however distantly related, somewhere. A will or trust leaving property to friends or charity, or beneficiary designations on the assets could have prevented the decedent's property from passing to the state.

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

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