Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed New Mexico attorney for advice specific to your situation.
Detailed Answer
1. Confirm Valid Execution
Under New Mexico law, a will must be in writing, signed by the testator and two competent witnesses. Even if the will is decades old, you must show it was properly executed at the time. Review any copies, drafts or ancillary records (e.g., attorneys’ files, bank records showing safe-deposit filing) to confirm date and signatures.
2. Locate and Interview Witnesses
If the original will is intact, locate at least two attesting witnesses. Their sworn testimony under oath will verify due execution. If witnesses are deceased or unavailable, see the lost-will procedure below.
3. File a Petition to Probate
File a petition in the District Court of the county where the decedent resided or owned real property. Your petition should include:
- Certified death certificate
- The original will (if available) or a copy
- A list of heirs and devisees
- Contact information for known witnesses
See NMSA 1978, § 45-3-201: Filing Petition; Venue.
4. Prove a Lost or Destroyed Will
If the original cannot be located, New Mexico’s Lost Will statute applies. You must:
- Present a complete, unaltered copy of the will or credible proof of its contents.
- Offer testimony from at least two witnesses who can attest to the testator’s signature and mental capacity when the will was signed.
This process follows NMSA 1978, § 45-2-603: Lost or Destroyed Wills.
5. Notice and Opportunity to Contest
After filing, the court will set a hearing date and require you to give notice:
- Direct notice to beneficiaries and heirs by mail.
- Publication in a local newspaper if heirs are unknown or unlocatable.
Pursuant to NMSA 1978, § 45-3-303: Notice to Heirs. Interested parties then have four months to contest.
6. Appointment of Personal Representative
If no timely contest arises, the court admits the will to probate, issues Letters Testamentary and appoints the personal representative. This person marshals assets, pays debts and distributes property per the will.
7. Final Accounting and Distribution
The personal representative must file periodic accountings and a final report before closing the estate. After court approval, assets transfer to beneficiaries as directed.
Helpful Hints
- Gather all existing copies, drafts or related correspondence.
- Start witness interviews early—memories fade over time.
- Document every step: filings, notices, witness affidavits.
- Use certified mail for notices to ensure proof of delivery.
- Consider hiring a probate attorney experienced in lost-will cases.
- Be prepared for potential objections from heirs or competing claimants.