Probate Law
The death of a loved one creates an emotional, and sometimes financial, roller coaster. Experienced probate attorney Vanessa L. DeNiro can assist in making the estate identification and distribution process as straightforward as possible.
When Probate is Necessary
When a loved one dies, financial tasks fall into two categories: paying the decedent's outstanding debts and transferring estate assets to those entitled to them. Probate refers to this legal process of settling final affairs after a death. If a will exists, the will executor usually starts the process by filing in the local probate court, although anyone with access to the will can file. If an executor is not named or is unable to perform the duties, a judge may appoint a person for this role.
Probate is necessary to prove that the decedent's will is valid, to identify and appraise the estate, notify creditors, pay debts, and distribute the remaining estate per the will's direction. Once the court files the will, notice of the probate proceedings may need to be filed in the local newspaper, giving anyone with an interest in the decedent's estate or creditors the opportunity to come forward. Probate can take anywhere from a few months to a year or more. Typically attorney and court fees for this process are paid from the estate.
Some property is labeled as non-probate estate. These are assets that are set up to transfer automatically to a designated beneficiary in the event of death, such as a retirement or joint bank account.
When no will exists, probate court still handles the affairs, referred to as intestacy. A surviving family member is usually appointed as an administrator. This person gathers assets of the estate, pays debts and distributes the remaining assets in accordance with the law.
Objections to Probate
When you believe the will filed with probate court may be invalid, you can file an objection. Sometimes an earlier or draft will is filed instead of the most recent will, or perhaps you think the decedent was forced into a will. Probate court will decide if the dispute is supported with evidence and if the will stands. Court can also remove the named executor if the objection has to do with that person.
Probate Made Simple
In New Mexico there are a few probate “shortcuts” for small estates, making probate proceedings simpler or avoiding probate entirely. For instance, an inheritor may skip probate when the estate is valued under a certain amount. If the total value of assets is under $50,000 or a married couple owns their home valued at $500,000 or less, the shortcut may be applied. The inheritor must prepare a document including what asset he or she is entitled to, then the document is signed under oath. This document, an affidavit, is given to the person or organization with possession of the asset (like a bank) along with the death certificate and the asset will be released.
To request a simplified probate proceeding, the executor will file a written request to use the simplified procedure. The court can then allow the executor to distribute according to the will. The simplified estate process is available for New Mexico residents if the estate value does not exceed specific allowances or expenses.
Even when simplifying or skipping probate through affidavits, there are requirements and exceptions that a professional probate attorney will know how to navigate. With so many variables and potential complications, we keep the client and beneficiaries' best interests in mind to remove as much stress as possible during the difficult time following the departure of a loved one.