When a loved one passes away, the days, weeks, and even months that follow are inevitably grief-filled. Understandably, the practical and legal ramifications of your loved one’s death are probably not at the forefront of your mind. However; if you were named as the Personal Representative, aka the Executor, of the estate in the decedent’s Last Will, your loved one is counting on you to be able to put aside your grief to the extent necessary to handle administering his/her estate. If you have never administered an estate, you may know very little about the probate process which is why you should consider retaining the services of an experienced New Mexico estate planning attorney. To get you started though, the estate planning attorneys at Morris Hall PLLC have put together some Las Cruces, New Mexico probate resources that may be helpful. If you have specific questions or wish to consult directly with an experienced probate attorney, please feel free to contact our office to schedule a consultation.
Probate Basics for the First-Time Personal Representative
As a first-time Personal Representative, you may have a general idea of what probate entails; however since you will be in charge of the process you need a deeper understanding. When a person dies, property and other assets owned by the decedent are typically left behind. Those assets make up the decedent’s estate. Probate is the name of the legal process that ensures a decedent’s assets are identified, located, secured, and eventually transferred to the intended beneficiaries and/or legal heirs of the estate. You probably think of probate as the legal process that handles the distribution of estate assets. Distributing estate assets is part of the probate process; however, probate serves other functions as well, such as authenticating the decedent’s Last Will (if one was in place), evaluating and paying creditor claims, and ensuring that taxes owed by the estate are paid.
If the decedent executed a Last Will and Testament prior to his/her death, the person named as the Personal Representative in that Will is in charge of administering the estate and overseeing the probate process. In addition, the terms of that Will govern the distribution of the assets. If the decedent died intestate (without a Will), an interested party, this is typically a family member or close friend, petitions the court to be appointed the Personal Representative of the estate. In that case, the New Mexico intestate succession laws dictate how the estate assets are distributed at the end of the probate process.
If you would like to learn more about the probate process in general, the American Bar Association has a section entitled “The Probate Process” on its website that you may wish to read. Although it is from a different county, you may also find the section entitled “Duties of the Personal Representative” located on the Santa Fe County website to be very helpful in describing what will be expected of you as the Personal Representative (PR) of the estate.
Court Resources for the Pro Se (Self-Represented) Personal Representative
Probating even a relatively simple estate can be a time-consuming and emotionally exhausting process. If the estate involves valuable and/or complex assets, or if the estate becomes involved in litigation, a Personal Representative can begin to feel overwhelmed and may make costly mistakes. For these reasons, most PRs retain the services of a probate attorney to assist them through the probate of the estate. If, however, you choose to proceed pro se, meaning without legal representation, you will need to know a few basics before you get started. For example, probate usually takes place in the county in which the decedent was a resident at the time of death. In this case, if the decedent was a resident of Las Cruces at the time of his/her death, you would initiate the probate process in the Dona Ana County Probate Court which has jurisdiction over probate matters throughout the county. Even though you are not an attorney, you will be expected to be familiar with the applicable court rules and established procedures. You may also want to download the New Mexico Courts “Self-Help Guide.” A few of the forms you might need can also be downloaded from the court’s website.
Hiring an Estate Planning Attorney
Although you may not be required to retain the services of an attorney to assist you during the probate process, there are several reasons why most people choose to hire an experienced estate planning attorney to assist them nonetheless. Not only can an attorney guide you through the probate process, allowing you to focus on grieving, but having an attorney on your side also dramatically decreases the possibility of making a costly mistake. A good place to start is with the American Academy of Estate Planning Attorneys website (“AAEPA”). 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. In addition, the State Bar of New Mexico also offers a lawyer referral service.
Resources for Probating an Estate
Once again, the Santa Fe Probate Court has a resource you may find helpful entitled “Real Property as Part of Probate Cases in New Mexico.” If you are probating an intestate estate, you may also wish to review the section entitled “What Is an Heir?” Keep in mind that although individual counties may differ procedurally in the manner in which an estate is probated, the laws relating to the probate of an estate are uniform throughout the state of New Mexico. Consequently, resources from Santa Fe County should be helpful.
To get the probate process started, you will need to prepare a petition to open probate. If you have retained (or will retain) an attorney to assist you, this is something your attorney will prepare for you. In addition, you must submit an original, signed copy of the decedent’s Last Will and Testament, if one was located, along with a certified death certificate to the Dona Ana County probate court. You can obtain a certified copy of the decedent’s death certificate 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 Dona Ana County Assessor’s Office. Creditors of the estate, both known and unknown, are also entitled to notification. Known creditors must be notified individually; however, for unknown creditors, you may publish a notice in a local newspaper which can be accomplished through the Las Cruces Sun News or another newspaper.
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. Fortunately, New Mexico is not among the states that also impose a state gift and estate tax so you do not need to worry about that as well. It is always a good idea, however, to check with the New Mexico Department of Taxation and Revenue to find out if you are required to file a return for the estate.
vIf you have additional questions or concerns about the probate of an estate or fulfilling the role of Personal Representative, contact an experienced Las Cruces, New Mexico estate planning attorney at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.