Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for advice on your specific situation.
Detailed Answer
When someone dies in New Mexico without a valid will (intestate) and leaves no spouse but two surviving children, state law directs how their estate passes. New Mexico’s intestate succession rules appear in the New Mexico Statutes Annotated (NMSA) Chapter 45, Article 2.
1. Appointment of Personal Representative
Before distribution, the probate court appoints a personal representative (PR). The PR locates assets, notifies creditors, pays debts, and handles tax filings. After closing debts, the PR distributes the remaining assets according to intestate rules.
2. Definition of “Descendant” and “Issue”
“Descendants” include a decedent’s children, grandchildren, and further lineal descendants. Under 45-2-102 NMSA, “children” means legally adopted and biological children.
3. Distribution When No Spouse Survives
New Mexico law states that if there is no surviving spouse but one or more surviving descendants, the entire estate passes to those descendants, divided equally by “per capita with representation.” See 45-2-103 NMSA.
How Per Capita with Representation Works
- Each branch of the family receives an equal share at the generational level nearest the decedent.
- If a child predeceased the decedent but left children (the decedent’s grandchildren), that branch steps into the child’s share and splits it equally among themselves.
4. Application to Two Children
In your scenario, the decedent left exactly two surviving children and no spouse. Under 45-2-103 NMSA, each child inherits one-half of the net probate estate. No other relatives share because the two children exhaust the line of descent.
5. Practical Steps for Distribution
- File a petition for probate in the district court of the county where the decedent lived.
- Gather and value assets (bank accounts, real property, personal items).
- Notify creditors and pay valid claims.
- Prepare an inventory and final account for court approval.
- After debts and expenses, distribute the estate: each child receives 50% of the remainder.
Helpful Hints
- Collect certified death certificate copies early; most institutions require them.
- Create a detailed inventory with fair-market valuations.
- Keep clear records of all transactions and communications.
- Review New Mexico’s filing deadlines to avoid estate administration delays.
- Consider hiring a probate attorney if disputes or complex assets arise.