Detailed Answer
Under New Mexico law, probate of a will can proceed in one of two ways: by solemn form or by common form. Both procedures admit a will to probate, but they differ in steps, notice requirements, cost, and how long interested parties can challenge the will.
Solemn Form Probate
In solemn form probate, the court holds a formal hearing. The executor files a petition and personally serves notice on all heirs, devisees and known creditors. At the hearing, the witnesses who signed the will testify under oath about the testator’s mental capacity and the document’s authenticity. Once the court is satisfied, it issues letters testamentary (if there’s a valid will) or letters of administration (if there isn’t). See NMSA 1978, § 45-3-301.
Common Form Probate
Common form probate streamlines the process by eliminating the in-court hearing. Instead, the executor files the will along with affidavits of two subscribing witnesses or other authorized proof of validity. The court admits the will on the affidavits alone and issues letters without a hearing. The estate remains open for two years from the date of admission, giving any interested party the right to contest the will. If someone contests within that period, the court may convert the matter to solemn form and schedule a hearing. See NMSA 1978, § 45-3-401.
Key Differences
- Procedure: Solemn form requires a court hearing; common form relies on sworn affidavits.
- Notice: Solemn form demands personal service; common form uses published or mailed notice.
- Timeline: Solemn form can take longer due to scheduling and testimony; common form often finishes faster.
- Cost: Fees for court hearings and witness attendance typically make solemn form more expensive.
- Contest Period: Solemn form probate is final upon admission; common form remains open for two years to allow challenges.
Helpful Hints
- Choose solemn form if you expect disputes or need definitive court findings.
- Opt for common form in simple estates to save time and money.
- Gather and notarize affidavits carefully for common form probate.
- Serve notices in strict compliance with New Mexico rules to avoid delays.
- Consult a probate attorney to determine which form best fits your estate’s complexity.
Disclaimer: This article provides general information on New Mexico probate law and does not constitute legal advice. Consult an attorney to discuss your specific situation.