Written By Attorney Charles L. McElwee

Probate is the process by which estates of the deceased are administered.  The word “probate” has Latin roots meaning in general to prove or test. In the purest use of the word it means to prove or test the genuine character of a last will and testament. We now use the word “probate” to refer to the process of estate administration whether or not the deceased person had a will. This article describes some of the things that commonly happen in probate. 

Many people are interested to find out that having a last will and testament does not mean their estates will avoid probate.  A large majority of wills contain text that says in one way or another that the Personal Representative, or Executor may act without the necessity of any court order or proceeding.  I’m sorry to say that simple phrase doesn’t actually mean what it says.  We lawyers really don’t have to look far to find reasons why people think legal documents are hard to understand.  That particular phrase actually means that after the will has been probated by court order the Personal Representative no longer has to keep going back to court to get orders or go through legal proceedings to do what must be done to administer the estate.

Estates have to be administered because there are bills to be paid and assets to be distributed to living survivors of the deceased person.  If all the assets also have another person’s name on them so that the other person can deal with them automatically and there are no bills, maybe probate is not needed.  Otherwise, somebody has to wind up the affairs of the deceased person.  When assets have only the deceased person’s name on the title, nobody has complete authority to take possession of all of the estate assets, pay all the bills and properly transfer all of the remaining assets to the living survivors. That is why a probate case is needed so that a court can confer that authority upon someone.

The first step in the probate process is to file papers called pleadings with the correct court having probate jurisdiction asking the court to appoint a Personal Representative for the estate.  “Personal Representative” is the term used inNew Mexico to refer to the person who in other times and places has been referred to as “Executor” or “Administrator”.  It’s the person who has the legal authority to do what must be done to settle the affairs of the estate of the deceased person.

When there is a last will and testament, almost always the court will appoint the person nominated in the will to serve as Personal Representative.  When there is no will, a statute determines who among the people having a connection to the decedent has priority to be appointed.  Sometimes several people can have equal priority to be appointed as Personal Representative.  If they can’t all agree which one of them should serve, then they can all have the opportunity to have an argument in court to see which one of them can persuade the judge to appoint them instead of all the others with equal or greater priority under the statute.

When all parties are in harmonious agreement with each other, the application for appointment of a Personal Representative can be easily presented in informal proceedings that do not require a hearing for the presentation of arguments and evidence.  When the parties disagree, the law requires a more complicated, difficult method called “formal proceedings.”  The party or parties seeking appointment must obtain a hearing date and give official notice to interested persons as defined in the statute so that all may have an opportunity to attend and speak to the judge about who should be appointed or not appointed and the reasons why.

Both simple informal proceedings and the more difficult formal proceedings involve pleadings such as an application for appointment, an order appointing Personal Representative, an acceptance of appointment by the Personal Representative, and Letters of Administration or Letters Testamentary.  The end result of the process is the appointment of a Personal Representative by order of the court.  The informal process may take only a few days to reach the end result.  A seriously contested formal proceeding will certainly take months and could take many months.

Those “Letters” can sure be confusing, too.  The first hint someone may get that a probate is needed for their deceased relative may be when a financial institution or other party says, “Go see an attorney and get some letters.”  At least that’s what it might sound like they said.  An attorney will soon explain that those “letters” are not just something that comes from the attorney’s office.  The “Letters Testamentary,” or “Letters of Administration” that are actually required are not several letters at all, but just one official document issued by the probate court as evidence of the legal authority of the person whose name is mentioned in the “Letters” to act as Personal Representative. Letters Testamentary signify that the Personal Representative was nominated to serve in that capacity by the decedent’s last will and testament.  Letters of Administration mean there was no will. 

Upon receipt of the “Letters” from the court, the will, if there was one, has been admitted to probate, meaning accepted by the court as the genuine last will and testament of the decedent, and that the Personal Representative now has the legal authority to administer the estate.

Administration of the estate usually does not require court supervision or assistance.  It does require the Personal Representative to identify all the assets, notify all the heirs and will beneficiaries of the administration of the estate, identify creditors and give them notice of their right to present their claims against the estate for payment, determine which claims should be paid and pay them and then make proper distribution of the remaining assets to the heirs and beneficiaries.  The Personal Representative then reports to the court that these necessary tasks have been performed and the administration of the estate will be officially closed by the court.

The lawyers at Davis Miles McGuire Gardner are prepared to assist you with probate matters both simple and complex.  We would also be happy to talk to you about probate alternatives, such as living trusts and the use of beneficiary designations to minimize or eliminate the need for probate.