Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified New Mexico attorney about your specific situation.
Detailed Answer
1. Determine the Proper Court and Case
In New Mexico, probate and estate matters are handled by the District Court in the county where the decedent resided at death (see NMSA 1978, §45-1-101). Locate the case number for the open estate proceeding. If no probate case exists, you may need to open one before issuing a subpoena.
2. Prepare a Subpoena Under Rule 45
New Mexico Rule of Civil Procedure 45 governs subpoenas. Obtain the approved form from the court clerk or your county’s court website. The document must include:
- The court’s name, case title, and case number
- The name of the person or entity to whom the subpoena is directed (e.g., bank, custodian of records)
- A clear description of the records sought (e.g., bank statements, deeds, title records)
- The date, time, and place for production or testimony
- A signature line for the issuing attorney or self-represented litigant
For rules and form samples, see NMRA Rule 45.
3. File the Subpoena and Pay Required Fees
File the signed subpoena with the District Court clerk’s office. Pay any required filing fee or obtain a fee waiver if you qualify. Ask the clerk for a stamped copy for your records.
4. Serve the Subpoena Properly
Under NMRA 45(b), you must serve the subpoena on the record custodian by personal delivery or by other methods permitted by law. Service must occur reasonably in advance of the production date. Retain a proof of service form, file it with the court, and keep a copy for yourself.
5. Respond to Objections or Motions to Quash
The record holder or an interested party may object or move to quash under NMRA 45(c). If that occurs, attend the hearing and present arguments showing the records are relevant and not unduly burdensome to produce.
6. Review and Use Produced Records
When the custodian produces the records, review them promptly. Use them in your probate case to locate assets, verify account balances, or resolve creditor claims. Submit relevant documents as evidence according to the court’s rules.
Helpful Hints
- Contact the clerk’s office early to confirm local subpoena forms and fees.
- Be specific when describing records; broad requests can be quashed.
- Serve subpoenas at least 14 days before the production date.
- Keep copies of all filings, service proofs, and correspondence.
- If the custodian charges fees for copying, confirm costs in advance.
- Consult an estate attorney if you face complex objections or confidentiality issues.