Formal vs informal probate in New Mexico

The short version

In Bernalillo County, uncontested cases are usually opened at the Bernalillo County Probate Court.

How informal probate works

An informal case starts with an application to the probate or district court, which the applicant must verify as accurate and complete as far as the applicant knows and believes. Under NMSA 45-3-301 it must include, among other things:

• the applicant's interest in the estate
• the decedent's name, date of death, age and county and state of domicile
• the names and addresses of the spouse, children, heirs and devisees, and the ages of any minors, as far as known
• a statement that the time limit for informal probate has not expired
• for a will, a statement that the original will is with the court or attached to the application, and that the applicant believes it was validly signed and is the last will

A personal representative cannot be informally appointed until at least 120 hours (five days) after the death (NMSA 45-3-307).

No hearing is held and, apart from people who have filed a demand for notice and any existing personal representative, no advance notice is required. Within 30 days after an informal probate is granted, the applicant must send written information about it to the heirs and devisees, unless a personal representative will be giving them notice instead (NMSA 45-3-306).

How formal probate works

Under NMSA 45-3-401, a formal testacy proceeding is litigation to determine whether the decedent left a valid will. It can be started by a petition asking the court to:

• probate a will after notice and a hearing;
• set aside an informal probate, or stop an informal probate that is pending; or
• declare that the decedent died without a will.

The district court sets a time and place for the hearing, and notice must be given (NMSA 45-3-403). While a formal proceeding is pending, the probate court may not act on any informal application for the same decedent. A personal representative who was already appointed informally must stop making distributions once notified of the formal case, unless the petition asks to confirm that appointment (NMSA 45-3-401).

Because filing a petition to set aside an informal probate is itself enough to start a formal proceeding, an uncontested informal case can become a contested formal one at any point before it is resolved.

Supervised administration

For estates that need ongoing court control, New Mexico also allows supervised administration: a single proceeding in which the district court oversees the whole settlement of the estate until it approves distribution and discharges the personal representative (NMSA 45-3-501). A supervised personal representative answers to the court as well as to the heirs. It is the most protective option and also the slowest.

Letters: the document that lets someone act

To get the powers of a personal representative, a person must be appointed by the district court or probate court, qualify, and be issued letters. Administration of the estate begins when letters are issued (NMSA 45-3-103).

Letters are what banks, title companies, the post office and other institutions ask to see before they will deal with someone on the estate's behalf. Ask the court clerk for several certified copies.

What a personal representative must do

Formal or informal, the personal representative is a fiduciary held to the same standards of care that apply to trustees, and must settle and distribute the estate under the will (if any) and the Probate Code as quickly and efficiently as is consistent with the interests of the estate (NMSA 45-3-703). Key duties and deadlines:

• Within 30 days of appointment: notify the heirs and devisees of the appointment (NMSA 45-3-705).
• Within three months of appointment: prepare an inventory of the decedent's property with estimated values as of the date of death and any liens, and send a copy to interested persons who ask for it (NMSA 45-3-706).
• Creditor notice: publishing notice starts a four-month window for claims (NMSA 45-3-801). See how long probate takes.
• Pay valid debts and expenses, then distribute what is left.
• Close the estate. One option is a verified closing statement, which cannot be filed earlier than six months after the original appointment and only after the creditor claim period has expired (NMSA 45-3-1003).

A personal representative is entitled to reasonable compensation, which can be reviewed by the court. See probate costs.

Which path fits your situation

Informal probate usually fits when the family agrees, the original will is available or there clearly is no will, and the person with priority to serve is willing. Formal probate, or a lawyer's advice about it, is worth considering when:

• someone may challenge the will, or a later will might exist
• only a copy of the will can be found
• family members disagree about who should serve as personal representative
• you want a binding court order on who the heirs are before distributing anything
• more than three years have passed since the death, which limits what can be done (NMSA 45-3-108)

Frequently asked questions