Do You Need to Open a Probate?

The probate process is somewhat misunderstood.

Do you need to open probateProbate is simply the legal process of administering the estate of a deceased person, whereby all claims are resolved and personal property is distributed.  During the probate process, a personal representative will be appointed who will be granted legal authority to dispose of the deceased’s assets. It is important to note that, even if someone dies with a Will, probate is still necessary in most cases. Basically, the only assets that will avoid probate are assets that are actually in some kind of a trust.  However, the question remains, do you need to open up a probate?

Normally, a probate must be filed within three years following the decedent’s death.

Under New Mexico law, no appointment of a personal representative may be made within the first 120 hours (five days) following the death.  Essentially, probate is a process that must be kept open until all creditors receive notice, claims are resolved, taxes are paid, and the estate assets are distributed.  Once the probate is closed, the personal representative no longer has authority to act on behalf of the estate.  However, not every estate requires probate proceedings.  Whether or not probate proceedings are required usually depends on how the decedent’s assets are titled or whether someone needs legal authority to act on behalf of the estate.  Examples of matters that may need probate proceedings include, but are not limited to: changing title to real property or personal property, such as bank accounts, stocks, bonds, etc.; dealing with creditors; obtaining medical or other protected records; and filing taxes when necessary.

In order to act on behalf of the estate, the personal representative will need either letters testamentary when there is a Will or letters of administration when there is no Will.

Thus, when the probate is opened and the letters are issued, the personal representative then has the authority to act on behalf of the estate, whether it be to change a title of real property or to deal with a bank account.  If there are creditors, whether known or unknown, the personal representative will also need to open a probate case (in most circumstances).  In the case of unknown creditors, once the probate is opened, the personal representative can file a notice to creditors in the newspaper weekly for two consecutive weeks.  The creditors then have a short time period in which to file any claims against the estate.  If they do not file those claims within the specified time period, the creditors waive their right to file such claims.  After notice is given to all creditors, creditors and taxes are paid, and the assets are distributed, the personal representative will need to compile a list of assets and an inventory of all property owned by the decedent at the time of death.  Upon completion of these tasks, the probate can then be closed.

In the case of a married couple wherein all assets and liabilities are owned jointly, probate may not be necessary, as the surviving spouse already has access and authority to act with respect to the assets.

It is important to speak with a probate or an estate planning attorney when deciding whether or not it is necessary to file a probate case since there are a variety of instances in which probate may or may not be necessary.  However, in those cases in which it is necessary, the personal representative needs to understand his or her rights and obligations along with the potential liability that may result if probate is not carried out accordingly.