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Probate is the court process to obtain the legal authority to act on behalf of the estate of a person who has died (decedent).

The estate is distributed according to: the decendent's will or if the decendent did not have a will, according to New Mexico's laws of intestate succession. The probate court appoints legally qualified persons, called personal representatives, to manage and settle the decedent's affairs. personal representatives distribute the assets decedent's estate to the rightful recipients. These might include heirs, devisees named in a valid and current will, or creditors.

A separate brochure, "Who are the Heirs," is available from the court.

Jurisdiction of the Court

State law limits the jurisdiction of the Probate Courts to uncontested informal (with no hearings) proceedings to:

Admitting wills to probate
Appointing personal representatives
Appointing special administrators

State law also allows probate judges to perform marriages within their county only.

A probate proceeding can be filed in the Bernalillo County Probate Court if:

The decedent was domiciled in Bernalillo County at the time of death (i.e., Bernalillo County was the permanent place of the decedent's abode), or
The decedent lived outside of New Mexico but owned property in Bernalillo County.

The probate court also provides general information about the probate process, access to and information about probate files (searches), and information about the court history.

The probate court staff can give general information about probate procedure and law but cannot give legal advice or discuss specific issues regarding cases.

Need

Not every estate requires a probate proceeding. It often depends on how the decedent's assets were titledor whether someone needs other legal authority to act on behalf of the estate. Examples of matters that may need a probate proceeding include, but are not limited to:

Changing title to real property or personal property, such as bank accounts, stocks, bonds, etc.
Dealing with creditors
Obtaining medical or other protected records
Filing taxes, when necessary

Timeline

Normally, a probate must be filed within three years following the decedent's death. Under New Mexico law no appointment of a personal representative may be made during the first 120 hours (five days) following the death.

After a probate has been filed, it needs to be kept open until all crediors receive notice, claims are resolved, taxes are paid, and estate assets are distributed. Once the probate is closed, the personal representative no long has authority to act on behalf of the estate.

Fees

Payment of a docket fee in the amount of $30 is required at the time a probate is filed. The court charges $ .50 per page for copies. The fee to have a document certified is $ .50 per document. The court accepts cash, credit cards, checks, money orders or cashier's checks.

Opening a Probate Case

The Application and Acceptance must be signed in the presence of a notary public prior to submission to the court. The Applicant is swearing that the statements made in these documents are complete, accurate, and truthful to the best of his/her knowledge.

Submit an original death certificate and the Application, Order, Acceptance and Letters Testamentary/Letters of Administration.
Submit at least one set of copies for the court to endorse stamp (the court keeps the original documents submitted to the court) or a fee for copies. Copies of pleadings should be placed behind the original of each document).
Submit a self-addressed stamped envelope if he/she would like the copies mailed back.

The court will review the documents before docketing the case to make sure there are no problems. Once the case is docketed, we cannot make any refunds.

After the judge signs the order appointing the personal representative, the court issues Letters Testamentary(when there is a will) or Letters of Administration (where there is no will). The letters give personal representatives the legal authority to conduct the decedent's estate business. See our Duties of the Personal Representative Brochure for further information.

Help

Probate cases can be filed with or without the help of an attorney (pro se). Do-it-yourself forms are available for purchase from the court for $5 or can be downloaded from the supreme court website at www.nmcourts.gov

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