Whether the passing was anticipated or unexpected, the loss of a loved one is typically followed by a grieving period that is full of heightened emotions ranging from denial to anger to depression. If you are currently grieving the loss of a loved one, the last thing on your mind is probably the practical and legal ramifications of your loved one’s death. If you were named as the Executor (also referred to as the Personal Representative) of the estate in the decedent’s Last Will and Testament, however, you will need to find the energy and strength to focus on the administration of your loved one’s estate. To help get you started, the Albuquerque, New Mexico probate attorneys at Morris Hall PLLC have put together some probate resources that may be helpful. Of course, if you have a specific question or concern about probating the estate, please feel free to contact our office to schedule a consultation.
Probate Basics – What Is Probate and Why Is It Necessary?
Probate is the legal process that is typically required after someone dies. Probate serves several important functions, including providing a legal framework within which the decedent’s assets are transferred to the new owners as well as ensuring that all creditors of the estate, including tax authorities, are paid. The individual who oversees the probate of an estate is referred to as the Personal Representative (PR) and is appointed by the decedent if a Last Will and Testament were executed prior to death. If the decedent died intestate, which means without a Will, any competent adult may volunteer to be the “Personal Representative and oversee the probate of the estate. In the State of New Mexico, the term “Personal Representative” is used to refer to either someone appointed by the decedent or who volunteers for the position. For more general information on the probate process, the American Bar Association has a section entitled “The Probate Process” on its website that you may wish to read. There is also a brief overview of the probate process on the Bernalillo County probate court’s website.
Probate is typically opened in the county in which the decedent was a resident at the time of death. If the decedent lived in Albuquerque that will likely mean probate will take place in the Bernalillo County Court of Wills, Estates, and Probate. Most PRs retain the services of an experienced estate planning attorney to assist during the probate process, particularly if the estate does not qualify for a small estate alternative to formal probate. If, however, you decide to proceed pro se, or without the assistance of an attorney, you will be expected to understand the Bernalillo County Rules of Court. Probate forms can be found on the New Mexico Court’s website; however, as noted on the court’s website, the court staff cannot help you fill out forms. Instead, they recommend that you consult with an experienced attorney.
Finding the Right Attorney
If you do decide to retain an attorney, you may initially feel overwhelmed at the thought of trying to find the right attorney when you are have so much on your plate. A good place to start is with the American Academy of Estate Planning Attorneys website. The AAEPA is a national organization of attorneys who have chosen to focus their practice on legal issues related to wills, trusts, and estates. Membership in the AAEPA signifies that an attorney has proven experience in the areas of estate planning and/or elder law. The State Bar of New Mexico also offers a lawyer referral service as does the Albuquerque Bar Association.
Personal Representative Resources
As the PR of the estate you will have a wide range of duties and responsibilities throughout the probate process. To get the probate process started you will need to file the appropriate petition with the Court of Wills, Estates, and Probate. When you file the petition you will need the original copy of the decedent’s Last Will and Testament along with a certified copy of the death certificate. You may obtain certified death certificates from the New Mexico Department of Health. You will also likely need to conduct a thorough search to make sure you have identified all real property owned by the decedent. A good place to start is the Bernalillo County Treasurer’s website where you can conduct a search of the county property records. As the PR you will also be responsible for notifying all creditors of the estate that probate is underway. Know creditors may be notified individually; however, for unknown creditors, you must publish a notice in a local newspaper. The Albuquerque Journal and the Health City Sun both include a legal notices section.
Paying Federal Gift and Estate Taxes
Because every estate is potentially subject to federal gift and estate taxes, you will need to be familiar with how to calculate the tax and how to prepare the tax return. The Internal Revenue Service (IRS) website offers a general overview of the federal estate tax. They also have a “Frequently Asked Questions about Estate Tax” section that may be helpful. If it turns out that the estate does owe federal gift and estate taxes, any tax obligation due must be paid before any assets are transferred out of the estate.
If you have additional questions or concerns about the probate of an estate or fulfilling the role of Personal Representative, contact an experienced estate planning attorney at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.