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Court of Wills, Estates & Probate

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

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Probate Time Limits

3:23 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: How soon after a person's death does a will need to be probated? In this case the bank account is a joint account and the only other assets are the personal residence and auto. The auto and residence are in the name of the deceased only. Please share this information in your future column. Thanks. T.E., New Mexico

Regular readers know that only the car and home require a court probate proceeding. The joint bank account should transfer to the surviving joint tenant(s) without a probate.

The general rule in New Mexico is that a probate case cannot be started until 120 hours (5 days) after someone dies and should be opened within three years of a person's death. If three years or less have passed since a person died, you can usually open a probate for estates with or without a will in either the probate or district court.

A few exceptions to the general three-year rule exist. One exception allows an informal appointment of personal representative more than three years after a person's death for the purpose of confirming title to the appropriate successors. The personal representative has no right to possess estate assets other than to confirm title. Creditors' claims, other than expenses of administration, cannot be presented against the estate at this late date. This type of informal appointment can be filed in the probate or district court if the person died intestate (without a valid will).

The do-it-yourself probate forms approved by the New Mexico Supreme Court for use in the probate courts include a statement, "The decedent died more than one-hundred twenty hours ago. It has not been more than three years since the decedent's death." The forms do not include an option for intestate probates opened more than three years after a person's death.

You can use these forms to open an intestate estate in the probate courts more than three years after a decedent's death. However, you would need to alter the Application for Informal Appointment of Personal Representative, Form 4B-101, to state that it has been more than three years since the decedent died, and that you are opening the probate for the purpose of confirming title to property to the successors to the estate.

If a decedent had a will and it has been more than three years since death, New Mexico law appears to require a formal testacy proceeding. Only a district court judge can open a formal probate.

Sometimes, even if it has been more than three years and a will exists, the district court will allow an informal probate proceeding instead of a formal one if all of the decedent's family members agree. This is because district courts have broader jurisdiction and powers than probate courts. The district court judge would also have to decide whether to admit the will to probate if it has been more than three years since the decedent's death.

Some people purposely wait one year after a decedent's death to file a probate case. This is because New Mexico's law bars creditor claims one year after the decedent's death. If a creditor wants to file a claim and the family refuses to open the probate, a creditor as an "interested person" can ask to be appointed as personal representative 45 days after a decedent's death. This type of proceeding would need to be filed in the district court.

© 2005, Albuquerque Journal, All Rights Reserved 

Appeared August 11, 2005, Albuquerque Journal, Business Outlook 

Reprinted with permission


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