Disclaimer: This article provides general legal information about New Mexico probate law. It is not legal advice. Always consult a qualified attorney for advice about your specific situation.
Detailed Answer
In New Mexico, a person seeking to open a decedent’s estate must petition the probate court in the county where the decedent resided. The court then appoints a personal representative (also called an executor or administrator) according to a strict priority list found in the New Mexico Probate Code.
Under NMSA 1978, Section 45-3-202 (NMSA 45-3-202), the court gives preference to certain individuals in this order:
- Person nominated as personal representative in the decedent’s will.
- Decedent’s surviving spouse.
- Decedent’s adult children or their descendants.
- Decedent’s parents.
- Decedent’s siblings.
A mother-in-law is not listed among the preferred classes. However, NMSA 45-3-203 (NMSA 45-3-203) allows the court to appoint someone outside those classes only if all higher-priority persons are unavailable, unwilling or unsuitable. In practice, a mother-in-law may petition the court, but she will be appointed only after the court determines that no closer relatives will serve.
To open the estate and seek appointment as personal representative, you must:
- File a petition for probate with the local district court probate division.
- Submit the decedent’s death certificate and any original will.
- Provide names and addresses of all heirs and beneficiaries.
- Publish or mail notice of probate as required by statute.
- Post a bond if the will does not waive it or the court does not excuse it.
If you lack priority and no will nominates you, the court must find that all preferred persons declined or cannot serve before appointing you. If you are named in the will, the court generally honors that nomination unless grounds exist to disqualify you (e.g., incapacity or conflict of interest).
Helpful Hints
- Review the will carefully for any nomination or waiver of bond.
- Contact all higher-priority relatives early to see if they plan to serve.
- Keep a clear record of notices sent to heirs and creditors.
- Be prepared to post a surety bond unless the court waives it.
- Consider consulting a probate attorney to navigate filing requirements and deadlines.