Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Detailed Answer
Under New Mexico law, an interested person may petition the probate court to remove a personal representative (also called an executor or administrator) for mishandling estate assets. The primary statute governing removal is NMSA 1978, § 45-3-709. This statute authorizes removal for cause, including waste of assets, breach of fiduciary duty, refusal to perform duties or misconduct.
- Draft and File the Petition. Prepare a written petition in the county where the estate is administered. The petition must:
- Identify the estate and case number.
- Name the personal representative.
- Allege specific grounds for removal (e.g., failure to account, self-dealing, unauthorized distributions).
- Request removal under § 45-3-709 and, if desired, appointment of a successor.
- Serve Notice on Interested Parties. Serve the petition on the personal representative and all interested persons as defined by § 45-3-704. This includes heirs, beneficiaries and creditors. Proper service ensures due process and gives affected parties a chance to object or respond.
- Attend the Court Hearing. After filing and service, the court will schedule a hearing. At the hearing:
- Present evidence of mishandling (bank records, appraisals, invoices).
- Call witnesses to testify on the representative’s conduct.
- Allow the personal representative to defend actions or explain apparent discrepancies.
- Court’s Decision and Successor Appointment. If the court finds cause under § 45-3-709, it may remove the current representative. The court can then appoint a successor under § 45-3-708 and set any required bond. The new representative assumes duty to complete estate administration.
Helpful Hints
- Review the will or trust for any express removal clauses or successor designations.
- Document every suspected breach with clear, dated records and communications.
- Consult court rules in your county for local deadlines, fees and filing requirements.
- Consider mediation if disputes among heirs may delay removal proceedings.
- Keep all interested parties informed to avoid additional objections or claims.