The Probate Process


The probate process is what happens when you have a will that does need to be reviewed by the probate court after a personal representative is decided on whether it is a court-appointed official or someone who filed the probate. The other reason why a probate would happen is that a will was not written before the time of passing and the estate needs to be inventoried and distributed based on the Intestate Laws, which vary by state. The way that probate works in New Mexico is that once the probate court does go through the will or makes a decision on how the assets should be distributed, the personal representative will do an inventory for everything that is owned by the deceased. Once the inventory has been completed, it is up to the representative to distribute the assets according to the will or based on the Intestate Laws. Listed below are all the steps to the probate process simplified:

  1. A petition for probate is filed in the county where the decedent lived to open probate.

  2. The person named in the will is approved to be the executor of the will or, in the case that no one is named the court will appoint someone to act on behalf of the estate.

  3. The executor takes inventory of all assets of the estate, secure them, and will have them appraised if necessary. 

  4. The executor notifies creditors and pays all debts.

  5. Tax returns are filed and any owed taxes are paid, if necessary. 

  6. Once all other debts have been satisfied, the executor distributes any remaining assets to the heirs.

Disputes for Distribution


When a will is in probate, there is a process that is called Will Contest. When a will has been supplied to the Probate Court and a personal representative has been established, the process will begin to distribute assets to the family members listed in the will as beneficiaries. This is when a will can be contested, if there is any doubt about the legitimacy of the written will, and in the event that there is not a will, you can contest the distribution that was determined by the probate court in the event that you feel that the Intestate Laws specific to your state are not being followed appropriately.

Important Information for Probate


Once a will has been read and everything is inventoried for distribution to beneficiaries, accounting, inventory, and distribution are required to be submitted to the Probate Court. In the state of New Mexico, most estates will go through probate unless placed into a trust with a beneficiary before the time of passing, and according to New Mexico statutes, it is required that probate be filed within three years of the person in question passing. However, no one can be appointed to be the executor or probate officially opened until after 120 hours of the individual passing. Another big thing to be aware of is once probate has been started, it does take a year in most cases to be settled. Creditors do have upwards of a year to submit a claim against the estate. New Mexico is one of the few states that does utilize the uniform probate code, which can be found in Chapter 45 of New Mexico Statutes under article 3. This video goes over the basics of probate in the State of New Mexico and the best ways to handle the probate process.

Anthony Spratley
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Experienced Divorce, Child Custody, and Guardianship Lawyer Serving Albuquerque and Beyond