13 PBProbate Procedures
13 PBProbate Procedures
PROBATE
Informal Probate Flowchart................................................................ 5
Formal Probate .................................................................................. 6
Probate Overview .............................................................................. 7
Subject Matter Jurisdiction................................................................. 8
Venue ................................................................................................ 9
Oath or Affirmation on Filed Documents............................................ 9
Demand for Notice........................................................................... 10
Filing Petition for Probate ................................................................ 11
Notice of Hearing ............................................................................. 13
Notice to Creditors ........................................................................... 14
Final Hearing ................................................................................... 15
Records of Informal Probate Proceedings/County Probate............. 16
Filing of Claims ................................................................................ 17
Deposit of Lifetime Wills .................................................................. 18
Deposit of Lifetime Will Form........................................................... 20
Probate of a Foreign Will or Ancillary Probate................................. 22
Foreign Personal Representative .................................................... 23
Trust Administration......................................................................... 24
Execution and Levies Prohibited ..................................................... 24
PROBATE FLOWCHARTS
Case Initiation/Reopen with Filing Fee ............................................ 34
Case Initiation without Filing Fee..................................................... 35
Attach Parties to Case ..................................................................... 35
Entering a Case ............................................................................... 36
Docketing......................................................................................... 36
Closing a Case ................................................................................ 37
Docketing Closing Event.................................................................. 37
FACTS™ PROCEDURES
Case Initiation/Reopen With Filing Fee ........................................... 38
Case Initiation/Reopen Without Filing Fee ...................................... 48
Attach Parties to Case ..................................................................... 50
Entering a Civil Complaint/Petition .................................................. 65
Probate Causes of Action (PB)........................................................ 68
Guardianship or Conservatorship Causes of Action (PQ) ............... 69
Table of Contents |i
Docketing......................................................................................... 71
Closing a Case ................................................................................ 74
Table of Contents | ii
Chapter 1: Probate
In this Chapter:
In this chapter, you will find the clerical procedures for the following:
• PROBATE CASES
Definitions:
ancillary administration
Ancillary administration is when administration is in a state where
decedent has property and which is other than where decedent was
domiciled.
applicant
An applicant is the person who files with the court an application
asking for the court to take a particular action.
beneficiary
A beneficiary as it relates to trust beneficiaries, includes a person who
has any present or future interest, vested or contingent, and also
includes the owner of an interest by assignment or other transfer and,
as it relates to a charitable trust, includes any person entitled to
enforce the trust.
claim
A claim may include: a liability (debt) of a decedent or a protected
person, funeral expenses and expenses of administration (probate) of
estate. A claim does not include estate or inheritance taxes, demands
or disputes regarding title of a decedent or protected person to
specific assets alleged to be included in the estate.
codicil
A codicil is an amendment or supplement to a Last Will and
Testament.
deceased
A deceased is a dead person.
decedent
A decedent is a deceased person.
Probate |1
devisee
A devisee is the person to whom lands or other real property are
devised or given by will.
disallowance of claim
A disallowance of claim is when the personal representative refuses to
pay a claim against the estate because they do not feel it is valid.
estate
An estate is the property of the decedent, trust or other persons whose
affairs are subject to the Probate Code.
formal proceedings
Formal proceedings are those conducted before the District Court with
notice to interested parties.
informal proceedings
Informal proceedings are those conducted without prior notice to
interested persons by an officer of the court acting as registrar for probate
of will or appointment of personal representative.
interested persons
Interested persons are heirs, devisees, children, spouses, creditors,
beneficiaries and any others having a property right in or claim against
a trust estate or the estate of a decedent, ward, or protected person
which may be affected by the proceeding, persons having priority for
appointment as Personal Representative, other fiduciaries
representing interested persons. Interested persons are determined
case by case.
intestate
Intestate is when a person is said to have died without making a will,
or who dies without leaving anything to testify what his/her wishes
were with respect to the disposal of his/her property after death.
last will and testament
A last will and testament is a legal declaration of a person’s mind as to
the manner in which he/she would have his/her property or estate
disposed of after his/her death; a written instrument legally executed
by which a person makes disposition of his/her estate to take effect
after his/her death.
letters
A written communication usually from a court containing a grant (as of
a right) or an appointment (usually used in plural).
letters of administration
A letter from a probate court that appoints the addressee the personal
representative of an intestate estate.
letters testamentary
A letter from a probate court that appoints or confirms the addressee
as the personal representative of a testate estate
minor
A minor is a person who has not reached the age of majority.
Probate |2
personal representative
A personal representative includes an executor, administrator,
successor personal representative, special administrator and persons
who perform substantially the same function under the law governing
their status.
petitioner
A petitioner is one who files with the court a petition asking the court to
take a particular action.
probate
Probate is the process of proving in a court of competent jurisdiction
(as a district or probate court) that an instrument is the valid last will
and testament of a deceased person.
real property
Real property is the land and generally whatever is erected or growing
upon or affixed to land.
supervised administration
Supervised administration is when the court has general oversight,
superintends or inspects all actions taken by a personal
representative.
testate
Having made a valid will.
testator/testatrix
A testator/testatrix is the person who died after having made a will.
trust
A trust includes any express trust, private or charitable, with additions
thereto, wherever and however created. It also includes a trust
created or determined by judgment or decree under which the trust is
to be administered in the manner of an express trust. Trusts exclude
other constructive trusts, and it excludes resulting trusts,
conservatorships, personal representatives, trust accounts, custodial
arrangements including those created under the Uniform Gifts to
Minor Act (Section 46-7-1 through 46-7-10 NMSA 1978) business
trusts providing for certificates to be issued to beneficiaries, common
trust funds, voting trusts, security arrangements, liquidation trusts and
trusts for the primary purpose of paying debts, dividends, interest,
salaries, wages, profits, pensions or employee benefits of any kind
and any arrangement under which a person is nominee or escrowee
for another.
trustee
A trustee is the person holding the property in trust. The person
appointed, or required by law, to execute a trust; one in whom an
estate, interest, or power vested, under an express or implied
agreement to administer or exercised it for the benefit or to the use of
another called the cestui que trust.
Probate |3
unsupervised administration
Unsupervised administration is when a personal representative may
take actions regarding estate matters without formal supervision of the
court.
Probate |4
Section 1-1: Informal Probate Flowchart
§ 45-3-204 Demand *A creditor may file a Demand for Notice
for Notice prior to the opening of the case.
§ 45-3-301
*PETITION OR *THIS IS THE OPENING EVENT
APPLICATION
§ 45-1-401 Request/Notice
for Hearing
§ 45-3-801 Notice to
Creditors
Claim
(Possible)
§ 45-1-401 Proof
of Notice
Tax Certification/
Claims
Affidavit of
§ 45-1-401 Publication
Accounting
§ 45-3-1003 Verified
Statement
Certificate of Full
Administration
Will
§ 45-3-403 Request/Notice
§ 45-1-401 for Hearing
Affidavit of
Publication
Proof
of Notice
*Hearing Order
§ 45-3-405 for Appointment *PR-Personal Representative
of PR
* Letters
§ 45-3-103 Testamentary/
§ 45-3-601 *Must be verified
Acceptance
Letters
to Heirs
Notice to
Creditors
Proof
of Notice
Tax Certification/
Claims
§ 45-3-1001 Accounting
Request
for Notice
Proof/Notice
of Publication
Order of
§ 45-3-1001 Complete
Settlement
1. Check probate index or demand for notice file. Demand for Notice may or
may not be filed.
2. $$$-Collect fee if required.
Probate: Venue |9
Section 1-7: Demand for Notice
NMSA 1978, § 45-3-204
• Follow in-house procedure for maintaining Probate Court docket sheets and records.
TIME LIMIT |
JOE SMITH,
Petitioner,
VS NO. ______________
TIM LEMASTER,
Respondent,
WARRANT OF EXECUTION
The Defendant having been convicted of Murder in the First Degree of Jane
Doe, and the Court having entered Judgment, Sentence and Commitment
thereon adjudging a sentence of Death pursuant to the jury verdict duly
received and entered by the Court on the 18th day of March 1996, the jury
verdict appealed as required by law to the New Mexico Supreme court and the
New Mexico Supreme Court having confirmed the jury verdict and issued the
Mandate on the 22nd day of September 1999, remanding the issue to the
District Court to carry out the Judgment and Sentence, and there existing no
legal reason upon the record herein against execution of the judgment of death.
NO. ______________
was deposited with the Clerk of the District Court of Bernalillo County, New
Mexico, by______________________.
This will is indexed and retained in the records of the office of the Clerk of the
____________ Judicial District Court located in _____________, New Mexico.
SEAL
BY:________________________
DEPUTY CLERK
DESIGNEE:_____________ DESIGNEE:________________
ADDRESS:_____________ ADDRESS:_________________
_____________ _________________
TELEPHONE:____________ TELEPHONE:_______________
DOB:___________________ DOB:______________________
__________________________
TESTATOR/TESTATRIX
__________________________
ADDRESS
__________________________
CITY/STATE/ZIP
MY COMMISSION EXPIRES:
_____________________
____________________________
NOTARY PUBLIC
***************************************************************************
RECEIVED THE LAST WILL AND TESTAMENT OF ________________
_____________________.
___________________________
SIGNATURE OF DESIGNEE
Statement of
Personal Rep.’s
Name & Address
Authenticated
Copy of Will,
Letters, & Bonds
Order
Petition or
Application
Request/Notice
for Hearing
Proof
of Notice
Order
Petition
Granted/Denied
Execution and Levies No execution may issue upon nor may any
levy be made against any property of the
estate under any judgment against a decedent
or a personal representative, but this section
shall not be construed to prevent the
enforcement of mortgages, pledges or liens
upon real or personal property in an
appropriate proceeding.
In this Chapter:
In this chapter, you will find the clerical procedures for the following:
• APPOINTING A GUARDIAN
• APPOINTING A CONSERVATOR
Definitions:
Conservator
A conservator is a person who is appointed by a court to manage the
property or financial affairs or both of an incapacitated person or a
minor ward.
Guardian
A guardian is a person who has qualified to provide for the care,
custody or control of the person of a minor or incapacitated person
pursuant to testamentary or court appointment, but excludes one who
is merely a guardian ad litem.
Guardian Ad Litem
A guardian ad litem is a person appointed by the district court to
represent and protect the interests of a minor or an incapacitated
person in connection with litigation or any other court proceeding.
Incapacitated Person
An incapacitated person is any person who is impaired by reason of
mental illness, mental deficiency, physical illness or disability,
advanced age, chronic use of drugs, chronic intoxication, or other
cause (except minority) to the extent that they lack sufficient
understanding or capacity to make or communicate responsible
decisions concerning his/her person.
Minor
A minor is a person who has not reached the age of majority.
Qualified Health Care Professional
A qualified health care professional is a physician, psychologist, nurse
practitioner or other health care practitioner whose training and
expertise aid in the assessment of functional impairment.
§ 45-5-405
§ 45-5-301 Request/Notice
Application for for Hearing § 45-5-406
§ 45-5-309
Appointment of
Temporary
Guardian or
Conservator Order Appointing
could occur §§ 45-5-303C.-D. § 45-5-401.1
Visitor, Qualified
between these § 45-5-303.1 Health Pro., GAL §§ 45-5-407 B.-D.
events.
Proof
of Notice
Inventory/ § 45-5-418
§ 45-5-303 E. Visitor Report
§ 45-5-421
§ 45-5-308 Letters § 45-5-421.1
Annual Report/
§ 45-5-314 or Request for § 45-5-409
Hearing
Order Approving
Annual Report
• The guardian of an incapacitated person shall file an annual report with the
appointing court within thirty (30) days of the anniversary date of the guardian's
appointment.
• A copy of the report shall also be submitted to the district judge who appointed the
guardian or his successor, to the incapacitated person and to his conservator, if any.
• A temporary conservator may be appointed by the court upon a finding that serious
and irreparable cause to the property and financial interest of the protected person
would result if regular procedure were followed.
• The duration of the temporary conservatorship shall not exceed sixty (60) days ,
except that upon order of the court, the temporary conservatorship may be extended
for no more than thirty (30) days .
Within ninety (90) days after his appointment, every conservator shall prepare and file
with the appointing court a complete inventory of the estate of the protected person
together with his oath or affirmation that it is complete and accurate so far as he is
informed.
Search Create
Create New
Case & Receipt
Multiple Checks
Create New
Case & Receipt
New ID No/
Receipt
Print Receipt
CAUTION | SEARCHING
• Do not create new parties for participants who may
already be in the database, for example, GALs or visitors.
• Search for those parties or keep a list of frequently used
parties.
• Adding participants who may already be in the database
slows it down.
Participant New
Search Results Participant Edit
New Participant
Party Names Address Entry/Edit
Aliases
Party Names
Party
Attorney Menu
Party
Attorney Edit
Party
Attorney Menu
Party Names
Complaint Cause of
Party Screen Actions
Event Description
Case Docket
Event Description
Case Docket
Crt
(Default-D for District)
Loc
(Default-four digit location
code, for example, 0101)
Cat Enter case category, PB or PQ.
Case No. • If this is a new case, ENTER through this
field.
• A message box will appear that asks if the
user would like to create a new case.
• Press ENTER or click OK .
• If this is a reopening, enter the appropriate
case number.
TYPE DESCRIPTION
J. Area.
CAUTION | NO PUNCTUATION
• Do not enter punctuation of any kind when entering
names.
• If a last name reads O’Neil, enter ONEIL.
# Units
Assessment
Stat.
(Default PN)
Stat. Date
(Default current date)
FType
(Default N)
File Date • F6: Press F6 and the cursor will move to
(Default current date) the Receipt Date field of the screen.
• F5 : If the party is paying another fee, for
example, a jury fee, then press F5 to add
this event on the line provided.
B Business Check
CC Cashier’s Check
MO Money Order
PO Postal Order
TC Traveler’s Check
More Checks (Y/N) • If you have more checks, enter Y for yes.
• The Multiple Checks screen will pop-up.
(FIGURE: 4-1.8)
• You can then enter up to four more
checks.
Figure 4-1.11:
Jurisdiction Area:
CAUTION | NO PUNCTUATION
• Do not enter punctuation of any kind when entering
names.
• If a last name reads O’Neil, enter ONEIL.
Delivery Method:
Attorney Type:
FIELDS INSTRUCTIONS
Contested
(Default No)
Jury
Disposition code
Disposition Date
Use the Case Docket screen to record events that occur in a case. These events
record the progression of a case.
Calendar Days:
Issue Form:
7
8
Party: