Detailed Answer
When a decedent names someone in their will to serve as personal representative (often called an executor) but that person refuses or is unable to serve, New Mexico law allows the probate court to appoint another qualified person. You do not automatically become the personal representative just because the named person declines. Instead, you must ask the probate court to appoint you. This article explains how that appointment process usually works in New Mexico and the steps you should expect.
Key legal concepts (plain language)
- Personal representative: The person the court appoints to manage the estate (collect assets, pay debts, distribute property).
- Will nominates vs. court appointment: A will can nominate a personal representative. If the nominee accepts, the court typically appoints that person. If the nominee declines, the court follows either any alternate nomination in the will or statutory priorities for appointment.
- Administrator with will annexed: If the named nominee declines and no acceptable alternate is named, the court can appoint an interested person (often an heir or devisee) to serve with the will admitted to probate.
How the process typically works in New Mexico
- Locate the original will. You will need to file the original will with the probate court.
- Confirm the nominee’s declination. If the person nominated in the will (your sibling) refuses, get that declination in writing if possible and include it with your court filing. If they cannot or will not sign a written declination, the court can still proceed if the nominee does not qualify or does not act.
- File a petition to admit the will to probate and to appoint a personal representative. If you are asking the court to appoint you, you will file the petition asking to be appointed as the personal representative (sometimes called “administrator with the will annexed” if the nominated executor won’t serve).
- Provide required paperwork. Typical items include the death certificate, the original will, a petition or application for appointment, an oath or acceptance if you are willing to serve, and any statement about bond. The court’s probate clerk can tell you the local filing requirements and fees (New Mexico district courts handle probate matters).
- Notice to heirs and interested persons. Probate rules require notice to beneficiaries and heirs so they can object if they believe you are not suitable. If nobody objects (or if objections are resolved), the court usually appoints the person with the highest priority.
- Court appointment and letters. If the judge grants your petition, the court will issue letters testamentary or letters of administration (the papers that prove your authority to act). The court may require you to post a bond unless the will waives bond or the court waives the requirement.
Priority rules and who the court will appoint
If the named nominee declines or is disqualified, the court gives preference to other persons in an order set by statute and court practice. Courts generally prefer someone nominated in the will (including an alternate nominee), then a beneficiary under the will, then other interested persons such as a surviving spouse or next of kin. If multiple people request appointment, the court will consider qualifications, conflicts of interest, and the best interests of the estate.
For official information and to review New Mexico probate law, see the state’s statutes and court self-help resources. New Mexico’s statutory materials and probate rules appear through the Legislative Council Service (statutes): https://www.nmlegis.gov/lcs/legislation-statutes and the New Mexico courts’ probate self-help information: https://www.nmcourts.gov/self-help/probate/.
Common reasons a nominated personal representative refuses to serve
- Health, age, or personal incapacity.
- Conflict of interest or family discord.
- Perceived complexity or time commitment; the nominee does not want the responsibility.
- Criminal history or other legal disqualifications that prevent appointment.
What you should do now (practical next steps)
- Find the original will and a certified copy of the death certificate.
- Ask the named nominee to sign a written declination if possible. If they refuse, document attempts to contact them.
- Contact the probate clerk in the county where your parent lived to get the local probate filing forms, fees, and instructions. New Mexico district courts handle probate matters: https://www.nmcourts.gov/.
- Prepare and file a petition to admit the will to probate and to be appointed personal representative. If you need help, consult a probate attorney or the court’s self-help resources.
- Serve notice on beneficiaries and heirs, as required by the court rules. Attend any hearing if the court schedules one.
When you might not be appointed
The court can deny your appointment if you are unqualified (for example, if you lack legal capacity, have a disqualifying criminal conviction, or have a conflict of interest). If someone contests your appointment, the court will resolve the dispute in a hearing and follow statutory priorities and standards of fitness.
Hypothetical example
Parent’s will names Sibling A as personal representative and names no alternate. Sibling A signs a written declination. You (Child B) file the original will, a certified death certificate, and a petition asking the court to admit the will to probate and appoint you as administrator with the will annexed. You serve notice on all heirs. No one objects. The judge issues letters testamentary to you (or letters of administration with will annexed). If the court requires a bond, you post it or request the court accept a waiver of bond if the will includes one.
Resources
- New Mexico courts — probate/self-help pages: https://www.nmcourts.gov/self-help/probate/
- New Mexico legislative statutes portal (look up probate/estates provisions): https://www.nmlegis.gov/lcs/legislation-statutes
Disclaimer: I am not a lawyer and this is not legal advice. This article explains general information about New Mexico probate practice. Probate law is technical and fact-specific. To protect your rights and get help tailored to your situation, consider consulting a licensed New Mexico probate attorney.
Helpful Hints
- Start by locating the original will and the death certificate — courts will not admit a will without the original document in most cases.
- Get a written declination from the nominated person if possible — it simplifies the filing and avoids delays.
- Contact the probate clerk in the county where the decedent lived for local rules and forms before you file.
- Be prepared to post a bond unless the will waives bond or the court waives it — ask the clerk whether the will includes a bond waiver and whether the waiver is valid under local practice.
- Serve timely notice on all interested persons — missing notice requirements can cause delays or reopenings.
- If anyone contests the appointment, consider bringing an attorney; contested probate hearings are governed by strict rules of evidence and procedure.
- Keep clear records of communications and documents (emails, letters, phone logs) showing efforts to contact the nominated executor and interested parties.