What is Probate?

By Lori L. Millet, J.D., LL.M. ABQ Elder Law, PC

Probate is the legal process for transferring title of the assets of a deceased person (decedent). The process includes authenticating a deceased person’s will, reviewing their assets, paying their outstanding debts and taxes, and distributing what remains to their heirs. After the decedent dies, the court will appoint the person named in the will as personal representative to administer the estate in accordance with the terms of the will. If there is no will, an interested person can ask to be appointed as personal representative to administer the estate in accordance with intestacy law. A personal representative can be a family member or professional fiduciary.

If a person dies without a will, they are said to have died intestate, which means New Mexico law imposes a pattern of distribution for the estate, so the estate may not be distributed the way the decedent would have wanted. An estate can also be deemed instate if the will presented to the court is found to be invalid.

There are dedicated county probate courts that have limited jurisdiction to oversee probates. District courts in each county have full jurisdiction to oversee the process. It is the personal representative’s responsibility to initiate the probate process in the court in the county where the decedent lived. The personal representative files an application in the court and the will to initiate the probate process. A court officially appoints the personal representative, giving the personal representative legal authority to act on the estate’s behalf. A personal representative has no authority to administer the estate without a court order.

The personal representative’s function is to locate and oversee all of the estate’s assets and to determine each asset’s value. The personal representative will pay any taxes and debts owed by the decedent from the estate. Creditors are given a limited time to make claims against the estate for any money owed to them. If the personal representative rejects the claim, the creditor may take them to court, where a probate judge will determine the debt’s validity. The personal representative is responsible for filing the decedent’s final, personal income tax returns and estate tax returns where applicable. The personal representative’s last task is to distribute what remains of the estate to the beneficiaries.

Probate is required for any asset or account that does not have a joint owner or beneficiary named. If a joint owner or beneficiary is named then title changes automatically and probate becomes unnecessary. All real property (land or homes) must go through probate regardless of value unless the property was transferred with a transfer on death deed or had a surviving joint tenant. With very narrow exceptions, even a surviving spouse who was not in title has to probate real property that belonged to the deceased spouse.

Personal representatives must also seek out legal heirs, including surviving spouses, parents, and children. The probate court will determine the distribution of the estate among its legal heirs. In the absence of any family or other heirs, remaining assets go to the state.

Probate is not necessarily a bad thing. Sometimes the decedent’s estate planning goals can only be met through the probate process. Disputes among heirs can also be resolved through a probate. There are advantages and disadvantages to probate and probate avoidance techniques, so make sure you have the facts about all the techniques when deciding what course of action is best for you.

The more complex or contested an estate is, the longer the probate process can take to finalize. The longer the process, the higher the cost. Probate without a will typically costs more than probate with a valid will, but neither scenario is inexpensive. Probate court documents are public record, so if you want to keep your estate private, it is best to pursue other estate planning options such as a trust.

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