Probate is the process by which a will is admitted in a court proceeding to prove the validity of a will.
However, Probate is a term that is often used to describe the process of administering the estate of someone who has died. What do I mean by administering the estate of someone who has died?
The Probate process begins by an individual petitioning a court (in New Mexico, this can be a Probate Court or a District Court) and requesting appointment as Personal Representative of the estate of someone who has died. To be appointed, a person requesting appointment has to be nominated or have an interest in the estate of the deceased. The New Mexico Uniform Probate Code provides a list by priority of people or entities that have an interest in the estate of a deceased.
The Personal Representative has a duty to notify any creditors of the deceased that the individual has died and of a deadline to submit claims against the estate. Creditors may submit claims, and the Personal Representative has a duty to determine whether claims against the estate are valid and should be paid out of estate assets.
The Personal Representative also has a duty to create an inventory of the assets that make up the estate of the deceased. This can include personal property like household goods and furnishings to retirement and bank accounts.
Once creditor claims have been paid or disallowed, the Personal Representative has a duty to distribute estate assets in accordance with the Will of the deceased or the law of intestate succession (laws governing who gets the property of a deceased person if there is no will).
After all claims have been paid or disallowed, and all property of the estate has been distributed to the deceased person's beneficiaries or heirs, the Personal Representative petitions the Court to close the estate to finish his or her administration.
It is important to note that not all estates have to go through the Probate process. When the estate is a small estate (determined when the value of all estate assets is less than an amount defined by law), assets can be transferred by affidavit, without the involvement of the Courts.
If you are the personal representative of an estate or you may be an interested party in the estate of a deceased individual, you should seek competent legal counsel to ensure that the administration of the estate is handled appropriately.
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