Disclaimer

This article is educational only. It does not provide legal advice and is not a substitute for consulting a licensed New Mexico attorney about your specific situation.

Detailed Answer

If someone has run up unauthorized charges against your deceased parent’s assets, the probate process in New Mexico provides several paths to stop further loss and to recover misappropriated funds. Below you’ll find a plain-language explanation of how those paths typically work, who must act, and what remedies may be available.

Who controls the estate during probate?

When a person dies, a personal representative (called an executor if named in a will or an administrator if appointed by the court) takes control of the decedent’s assets. That fiduciary has a duty to collect assets, pay valid debts and taxes, and distribute the remaining property to heirs or beneficiaries. The personal representative has legal obligations under New Mexico probate law to protect the estate from improper charges and loss.

Types of “unauthorized charges” and how the probate process treats them

• Charges incurred before death (decedent’s debts): If someone billed the decedent for goods or services the decedent actually received, those are creditor claims against the estate. The personal representative evaluates and pays valid claims from estate assets in the order set by law.
• Charges made after death using estate accounts or credit cards: Purchases or withdrawals made after death are not legitimate estate debts. They likely amount to conversion, theft, or a breach of fiduciary duty if a person with estate access made them. Those charges are not allowed as estate expenses and should be reversed or recovered.
• Charges by a person acting as fiduciary (executor, agent under power of attorney, caregiver): If the person who made the charges had legal authority, the court will examine whether they acted within their authority and in the estate’s best interest. Unauthorized or self-dealing transactions can trigger court surcharge, removal, or civil/criminal actions.

Key probate tools to address unauthorized charges

• Inventory and accounting: The personal representative must identify estate assets and provide an accounting to the court and interested persons. Accounting often reveals unauthorized transactions and gives beneficiaries a formal basis to object.
• Objection to claims or transactions: Interested persons (heirs, beneficiaries, or creditors) can object in probate court to specific claims or to the personal representative’s actions. The court will decide whether the charge was a valid estate obligation or improper.
• Petition for surcharge or removal: If a fiduciary misused estate funds, the court can surcharge (order the fiduciary to repay) or remove the fiduciary. The probate court supervises fiduciaries and can compel restitution.
• Civil claims outside probate: Beneficiaries or the personal representative can sue for conversion, fraud, breach of fiduciary duty, unjust enrichment, or related claims to recover money taken from the estate.
• Criminal referral: Theft or embezzlement can be reported to law enforcement. Prosecutors can bring criminal charges if the facts show a theft offense under New Mexico law.

Typical steps to take if you discover unauthorized charges

1. Preserve evidence: Save bank statements, credit-card records, receipts, emails, texts, and any account-access logs. Record who had access to accounts.
2. Notify the personal representative: Provide the documents and ask for an explanation and a prompt accounting.
3. Freeze or secure estate accounts: If you are the personal representative, immediately notify banks and credit-card companies, ask them to freeze accounts, and cancel or recover card authorizations. If you are not the personal representative, ask the court or the personal representative to secure assets.
4. Demand an accounting or file an objection: If the personal representative’s accounting does not explain the charges, file a formal objection in probate court and request an order for a full accounting.
5. Ask the court for relief: Petition the probate court for surcharge (repayment), removal of the fiduciary, and an order directing recovery of the funds.
6. Consider a civil suit and/or criminal complaint: If the funds cannot be recovered through probate, talk with an attorney about filing a civil suit (conversion, fraud) and about reporting the matter to law enforcement.

Who pays valid estate claims, and who repays wrongful charges?

The personal representative pays valid creditor claims from estate assets. Unauthorized post-death charges are not allowable claims and should be repaid to the estate by the person who spent the money. If the personal representative authorized improper charges or failed to stop theft, the probate court can require that personal representative to reimburse the estate (surcharge) and remove them from their role.

Where New Mexico law applies

New Mexico’s probate processes and fiduciary duties are governed by the New Mexico Probate Code (NMSA 1978, Chapter 45) and by probate rules and court procedures. For general probate guidance from the New Mexico courts, see the New Mexico Courts’ probate self-help pages: https://www.nmcourts.gov/self-help/case-types/probate/ . For statutory text and official legislative materials, consult the New Mexico Legislature: https://www.nmlegis.gov/ .

When to get a lawyer

If the unauthorized charges are substantial, involve a fiduciary or caregiver, or if the personal representative will not act, consult a probate attorney promptly. An attorney can file objections, prepare petitions for surcharge or removal, and pursue civil recovery or coordinate with criminal prosecutors if appropriate.

Helpful Hints

• Act quickly. Preserve documents and bank statements before they’re lost or altered.
• Do not try to settle complex disputes informally with a person who may have stolen or improperly taken funds; get an accounting and involve the court when in doubt.
• If you are the personal representative, keep clear records and seek court approval before selling or moving significant estate assets.
• Ask the probate clerk or court self-help desk for local procedures and filing requirements; probate courts control deadlines and form requirements.
• Contact your bank and credit-card companies to dispute unauthorized transactions and request written confirmations of any freezes or reversals.
• If you suspect criminal conduct (theft, embezzlement, fraud), contact local law enforcement and preserve evidence for investigators.
• Consider a consultation with a New Mexico probate attorney quickly if large sums are at stake, the fiduciary refuses to cooperate, or the estate is complex.