Detailed Answer
Probate is the court process used to prove a deceased person’s will (if any), appoint someone to manage the estate, and distribute assets to heirs and beneficiaries. In New Mexico, the phrase “probate in common form” is commonly used to describe an informal or routine probate proceeding that admits a will to probate based on ordinary proof rather than a full, formal contested hearing.
In practical terms, probate in common form usually means:
- You file a petition with the district court in the county where the decedent lived asking the court to admit the will and appoint a personal representative (sometimes called an executor or administrator).
- You present the original will and the usual proof (for example, witness testimony or affidavit, or other evidence supporting the will’s validity). If the will appears regular and no one files a timely and proper objection, the court admits the will and issues letters authorizing the personal representative to act.
- The court typically does not hold an extended, contested hearing unless someone objects or there is a reason for formal proceedings (claims of forgery, lack of capacity, undue influence, or other serious disputes).
New Mexico uses procedures that allow for both informal (routine/common) and formal probate processes. Informal or common-form probate is appropriate when the will appears valid, the heirs and beneficiaries are known and cooperative, and the estate administration is straightforward. If interested persons oppose admission of the will, or if serious questions exist about the will or the estate, the matter can move to a formal probate hearing where evidence is developed in court.
What the personal representative can do after common-form probate:
- Collect and safeguard estate assets.
- Pay valid debts and taxes from estate funds.
- Sell property if necessary to pay debts or distribute the estate, subject to court rules or limits in the will.
- Distribute remaining assets according to the will (or under New Mexico intestacy rules if there is no valid will).
Key differences between informal/common-form probate and formal probate:
- Informal (common-form) probate is typically faster and less expensive. It proceeds without an evidentiary trial if no one objects.
- Formal probate requires a court hearing with evidence and may be necessary when the will’s validity is disputed, when important facts are in question, or when the court must supervise the administration closely.
Helpful New Mexico resources and where to start:
- New Mexico Courts – probate information and self-help resources: https://www.nmcourts.gov/self-help/probate/
- New Mexico Legislature home (statutes and links to law): https://www.nmlegis.gov/ — use the statutes search to locate probate statutes and the Uniform Probate Code provisions adopted in New Mexico.
Typical steps to open informal/common-form probate in New Mexico:
- Locate the original will (if there is one) and obtain a certified copy of the decedent’s death certificate.
- Prepare and file a petition for probate with the district court in the decedent’s county of residence.
- Provide notice to heirs, beneficiaries, and creditors as required by court rules. New Mexico rules require certain notices so people who may be affected can object if appropriate.
- If there are no timely objections, the court will typically admit the will and issue Letters Testamentary or Letters of Administration, authorizing the personal representative to manage the estate.
When common-form probate is not appropriate
- When someone contests the will’s validity (e.g., claims of forgery, lack of capacity, undue influence).
- When heirs are unknown or there are competing claimants to assets.
- When the estate is unusually large or complex (significant business interests, extensive real property, or tax issues) and needs court supervision.
Because statute language and court rules control many deadlines and notice requirements, consult the New Mexico probate rules and statutes for exact steps and timing. The New Mexico courts’ self-help probate page lists local forms and contact information for court clerks who can explain filing procedures: https://www.nmcourts.gov/self-help/probate/.
This is not legal advice. The information here is educational and general. For advice about a specific estate, contested will, or complex probate matter in New Mexico, consult a licensed New Mexico attorney.
Helpful Hints
- Gather the original will, death certificate, and a list of assets and debts before you file. Courts and personal representatives will want these documents.
- Check the New Mexico Courts probate self-help page for local forms and filing requirements: https://www.nmcourts.gov/self-help/probate/.
- Give notice to heirs and creditors promptly and follow statutory timelines. Failure to provide required notice can delay probate or expose the personal representative to liability.
- If someone objects to admitting the will, the case may move from informal/common-form probate to a formal probate hearing where evidence is taken under oath.
- Small or simple estates may qualify for simplified or summary procedures — check the court resources to see whether your case qualifies.
- Keep careful records and receipts for all estate transactions. Personal representatives must account for receipts, expenses, and distributions to the court or to beneficiaries if required.
- Consult an attorney if the estate involves real estate, business interests, tax issues, or if you anticipate a will contest. An attorney can explain statutory deadlines, creditor claim periods, and the pros and cons of informal versus formal probate.