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Probate (After Death Rights)

When an individual dies in New Mexico, the law instantly assumes that the title to all of that person’s property as well as the responsibility for his debts transfers to his “estate.”  The “estate” literally is born at the exact same moment that the individual passes.  New Mexico law creates a legal entity – the Estate of John Doe, Deceased – to insure that the individual’s property is protected and that there is a smooth transition of legal title, hopefully in accordance with the decedent’s wishes.  It is important to note that probate generally becomes necessary when a person dies with assets in his or her sole name and without a designated beneficiary.  Some examples of assets that are not subject to probate are:  life insurance policy with a spouse designated as beneficiary, bank account that pays on death to a child, real property owned jointly with right of survivorship. 
If an individual dies with a will, then the first question is finding the document and insuring that it is valid under New Mexico law.  Wills must be written under New Mexico law, for example.  Mistakes in the document can mean that the decedent’s wishes will be ignored as the “intestacy statutes” take the place of a Will when there is no Will or if the Will is found to be legally invalid or void.
Of course, sometimes people die without ever making a Will. In this case, the New Mexico Intestacy Statutes determine the heirs to the estate. Generally, when a person dies without a Will, or “Intestate,” the property of the decedent must be probated.
​ Under either the terms of the Last Will and Testament, or under the language of the Intestacy Statutes, a personal representative is then appointed to oversee the estate, and acts in a fiduciary role.  Under the representative’s direction, the decedent’s property is accumulated and distributed, debts are paid, an accounting of what has occurred is finalized, and then the Estate is closed.  At that time, the legal entity that New Mexico law creates to assist in the transfer of property ceases to exist.