At Roybal-Mack & Cordova, PC, we strongly encourage families to dedicate adequate time to estate planning so that the wealth you spent your life building is preserved, protected and distributed according to your wishes. However, untimely deaths or the hope that tomorrow will come puts many families in the position of being subject to the government’s plan for estate distribution.

If your family needs assistance navigating the probate process or is encountering disputes along the way, our attorneys can help.

Understanding Probate-Related Vocabulary

Matters that fall under the jurisdiction of Probate Court involve a lot of legal vocabulary. Knowing how certain terms are used can immediately make the probate process and estate distribution easier.

Common legal terms that arise in probate issues include:

Decedent: the person who died whose estate is at issue

Beneficiary: any entity—individual, company, financial vehicle, etc.—who may acquire real property, personal property or other assets left by the decedent

Heir: a person related to the decedent by blood or marriage

Personal representative: a person named/recognized by the Court as having authority to act on behalf of the decedent to settle the estate, pay taxes, etc.

An Overview of the Probate Process

Settlement of an estate may fall to Probate Court. If your family’s estate is subject to the government plan, you may expect the probate process to entail:

  • Application for formal or informal Probate;
  • Application to Appoint a Personal Representative;
  • Investigation and Notice to Creditors;
  • Inventory and Accounting*;
  • Settle all creditors, including tax authorities;
  • Transferring the assets to the new owners;
  • Filing a Final Accounting and Closing the Estate

*If it appears from the inventory and appraisal that the value of the estate does not exceed expenses and applicable allowances, the personal representative may immediately disburse the assets of the estate and file a statement of summary administration that attests:

  • To the best of their knowledge, the value of the entire estate, less liens and encumbrances, did not exceed:
    • The family allowance ($30,000)
    • Personal property allowance ($15,000 for a surviving spouse)
    • Costs and expenses of administration; and
    • Reasonable and necessary medical and hospital expenses of last illness of the decedent and reasonable funeral expenses.
  • The personal representative has fully administered the estate by disbursing and distributing it to the appropriate (entitled) persons.
  • The personal representative has sent a copy of the closing statement to all distributees of the estate and to all creditors or other claimants of whom they are aware whose claims are neither paid nor barred.
  • The personal representative has furnished a full account in writing of their administration to all distributees whose interests are affected.

If no proceedings involving the personal representative are pending one year after filing the statement of summary administration, the personal representative’s appointment is terminated.

Even if the estate can be distributed quickly, the probate process can be quite expensive as it often requires filing fees, appraisals, attorney’s fees and accountant’s fees.

How Intestate Succession Works

If no valid will exists, then the decedent is said to be intestate, and transferring the assets to the new owners is subject to intestate succession. In New Mexico, intestate succession is as follows:

  • If the decedent was married at the time of death:
    • All community property passes to the spouse
    • Separate property passes to the spouse if there are no children
OR
  • Separate property is divided 25% to the spouse and 75% to the children
  • If a decedent was not married at the time of death:
    • All property passes to the decedent’s heirs, which may include (and are prioritized as follows):
      • Biological and adopted children
      • Grandchildren of a deceased child
      • Decedent’s parent(s)
      • Brothers and sisters

Attorneys have ways to find lost heirs and can help distinguish between community and separate property so that children from previous relationships and a decedent’s spouse receive the assets to which they are entitled.

How to Avoid Costly Probate

It is difficult to contain the cost of probate once you are in the process. The decedent’s estate has to be valued, and all creditors and heirs have to be identified. However, you can avoid much of the costs associated with probate through estate planning.

The Roybal-Mack & Cordova, PC estate planning team can help you create the legal and financial vehicles, such as wills and trusts, that allow you to bypass Probate Court and control to whom and how your assets are distributed upon death.

Start estate planning today. Complete our Probate Client Information Sheet and contact us to schedule an initial consultation at our Albuquerque office. If you are unable to meet in Albuquerque, please ask about our remote consultation options.

Dedicated Advocacy. Meaningful Results.


Translate »