Disclaimer: This information is educational only and is not legal advice. Laws change and every case depends on its facts. Consult a licensed New Mexico attorney to get advice for your situation.
Overview of the Process in New Mexico
When someone files a petition asking the probate court for possession and control of estate property, the court may grant temporary or permanent authority to that petitioner (for example, a personal representative or a claimant). If you believe the petition is wrong or improper, you can object and ask the court to dismiss or limit the petition. New Mexico’s probate law (see the Probate Code, Chapter 45) governs these cases and the court’s procedures.
See the New Mexico Probate Code: NMSA Chapter 45 (Probate Code). For court forms and procedural help, see the New Mexico Courts self-help probate page: nmcourts.gov – Probate Self-Help.
Key Legal Grounds to Challenge or Seek Dismissal
- Lack of jurisdiction or improper venue: The probate court must have authority over the decedent’s estate and the property in question. If the court lacks jurisdiction or venue is improper, ask the court to dismiss for that reason.
- Failure of the petition to state a claim: If the petition does not show legal entitlement to possession or control of the property, you can move to dismiss for failure to state a claim on which relief can be granted.
- Improper notice or service: Parties entitled to notice must receive it. If you did not get proper notice as required by the Probate Code or court rules, object on those grounds.
- Priority or appointment disputes: Another person may already be legally appointed (executor/administrator) or another ongoing proceeding may control possession. Show conflicting orders or appointments.
- Property not part of the probate estate: Some property passes outside probate (e.g., jointly owned property with rights of survivorship, payable-on-death accounts, or property controlled by a valid trust). If the property is not estate property, contest the petition on that basis.
- Bad faith, fraud, or undue influence: If the petitioner obtained control by fraud or seeks possession for improper purposes, raise those defenses and support them with evidence.
- Bond and fiduciary requirements: If the petitioner seeks control as a fiduciary but has not provided a required bond or has not qualified, object and ask the court to require bond or disqualify the petitioner.
Practical Steps to Challenge a Petition
- Read the petition carefully. Note the relief requested, the legal basis asserted, and who was served.
- Check notice deadlines. Look at the petition’s proof of service and the court’s scheduling order. In many probate matters you must file a written objection or response within a short time after service. If you miss the deadline, ask the court whether late relief is possible and be prepared to explain why.
- File a written objection or motion to dismiss. Your filing should state the legal grounds (lack of jurisdiction, failure to state a claim, improper notice, property not estate property, etc.) and cite relevant law when possible. If you seek immediate relief, include a request for a temporary restraining order or preliminary injunction to prevent transfer or removal of property.
- Ask for a hearing. Request the court set a hearing so the judge can decide the objection or the motion to dismiss. The court will give both parties an opportunity to present evidence and argument.
- Prepare evidence. Gather deeds, account statements, title documents, affidavits, prior court orders, copies of wills and trusts, and correspondence that supports your position.
- Use discovery if needed. In contested probate matters, the court may allow depositions, document subpoenas, and written discovery. Ask the court to compel documents or testimony if the petitioner refuses to produce key evidence.
- Consider emergency relief when property is at risk. If the petitioner is removing, selling, or wasting estate property, move quickly for temporary relief (bond, turnover, restraining order). Courts act faster on demonstrations of imminent harm.
What to Expect at a Hearing
At the hearing you or your attorney will:
- Present legal arguments and cite the Probate Code and local rules.
- Introduce documents and witness testimony showing why the petitioner lacks entitlement or why the petition is defective.
- Respond to the petitioner’s proof of need for possession and control.
- Ask the judge to dismiss, narrow, or condition any grant of authority (for example, require a bond or accounting).
The judge can deny the petition, grant it in whole or in part, or order temporary measures (bond, supervision, limited possession).
Evidence That Often Helps
- Title documents and deeds showing ownership or joint tenancy.
- Account statements and beneficiary designations proving non-probate transfer.
- Prior probate or guardianship orders that affect authority over the property.
- Affidavits or testimony showing lack of notice, fraud, or improper conduct.
- Copies of wills or trusts to show whether property belongs to a trust or the estate.
Possible Court Outcomes
- Dismissal of the petition.
- Denial of immediate possession but appointment of a receiver, conservator, or limited custodian with safeguards.
- Conditional grant of possession (requiring bond, inventory, or court supervision).
- Scheduling of further proceedings to resolve the underlying dispute (e.g., will contest, accounting).
Costs, Fees, and Bonds
The court may require a fiduciary to post bond, file inventories, and pay court costs. Challenging parties should also expect litigation costs. If a party acts improperly or in bad faith, the court may shift fees or impose sanctions.
See the New Mexico Probate Code for statutory provisions about fiduciary duties, bonds, and inventories: NMSA Chapter 45.
When to Get an Attorney
Probate disputes can turn on technical statutory requirements and precise deadlines. If the property is valuable, at risk of sale, or the petition raises complex issues (claims against the estate, will contests, or allegations of fraud), consult a probate attorney promptly. If you cannot afford a private lawyer, check for free or low-cost legal resources through New Mexico legal aid programs or local bar association referral services.
Helpful Hints
- Act quickly. Probate courts move on short deadlines when property is at stake.
- Keep copies of all documents and proof of service/receipt of notices.
- Document who currently controls access to the property and who has keys, bank access, or control of mail.
- Ask the court for temporary relief if the property faces immediate risk of removal or loss.
- Request an inventory and accounting if a fiduciary already has possession to learn what the estate contains.
- Preserve electronic evidence: emails, texts, and digital account statements can be critical.
- Bring witnesses who can testify to ownership, the decedent’s intent, or irregularities in the petitioner’s conduct.
Where to Find New Mexico Statutes and Court Help
New Mexico Probate Code (statutes): https://www.nmlegis.gov/Legislation/Statutes/Chapter/45
New Mexico Courts probate self-help and forms: https://www.nmcourts.gov/self-help/probate
If you want, provide brief facts about your situation (who filed the petition, what property is at issue, whether you received notice) and I can outline the most likely procedural steps you would take next.