Common Questions about Probate in New MexicoAlthough much of estate planning is aimed at the goal of circumventing the probate process, probate is unavoidable for some families because their deceased family member has failed to prepare a living trust or to transfer all appropriate assets into the trust. While probate can be more expensive and delay the distribution of your legacy to your beneficiaries, it does provide court supervision of the process where there are concerns about potential disputes between beneficiaries. Because the probate process is inextricably connected to estate planning decisions, our New Mexico Estate Planning Lawyers have provided answers so some common questions about probate in New Mexico.

Why is there so much discussion about avoiding probate?

The probate process has significant disadvantages that include substantial costs in probate administration fees and a significant lapse in time between a person’s death and the distribution of assets to one’s beneficiaries. The increased costs associated with the probate process means that less of your legacy remains available for your loved ones and family. Because your beneficiaries must wait for the accounting and payment of estate liabilities, they may experience severe financial hardships caused by the delay in receipt of the funds in your estate by your surviving spouse, children, and other beneficiaries.

When is probate necessary?

If a party does not prepare any estate plan or relies exclusively on a will for succession of an individual’s legacy. The will must be administered through probate once the will has been submitted. Probate also is necessary if a person dies without a will or a living trust. In this situation, the assets of the decedent are distributed based on a priority established under New Mexico intestate succession law.

Who may be appointed as the person who administers my estate during the probate process?

The person you select to administer your estate is referred to as the “executor” in most states. The selection of an executor is up to you, but you may choose from among family, friends, business associates, professionals, financial institutions, and more.

What are the basic tasks that comprise the process of administering a will?

The basic tasks that the trustee must undertake begin with conducting an inventory which involves gathering and valuing the assets that comprise the estate. The next step involves settling any claims against the state which includes tax liabilities. The net assets of the estate are only distributed after these two tasks have been completed.

How can I prevent my will from being challenged?

There is no guaranteed way to prevent someone from challenging the terms of your will. However, there are steps that you can take to discourage parties from contesting the terms of your will. If you use an experienced New Mexico Estate Planning Lawyer to craft a will that is unambiguous in its terms, this provides an effective way to head off potential drafting errors that can open the door to contested probate proceedings. It may be advisable to discuss the option of including a “no contest clause” in your will, but you should discuss the pros and cons of such a provision with your estate planning attorney. The crux of such a provision is that a party who challenges the will and loses essentially forfeits some or all of the gift that would have been received by the challenger under the terms of the will. A final approach is to have a medical competency exam performed immediately before preparing the will to deter potential claims that you lacked mental capacity when preparing the will.

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The above information is provided to illustrate general principles of law and should not be interpreted as a specific legal opinion on an individual case. You should contact experienced legal counsel to get specific legal advice that is based upon your specific circumstances.

Although we have attempted to answer some common questions about the New Mexico probate process, we recognize that you may have concerns that are specific to your individual situation. If you have questions about probate, succession planning, living trusts, or wills, our New Mexico Estate Planning Attorneys at Jay Goodman & Associates, PC offer a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your specific situation. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.


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