Do All Estates Have to Go Through Probate in New Mexico?

After facing the death of a loved one, the last thing you want to deal with is the tiring and stressful yet often required probate process. If you are an heir or beneficiary of the deceased individual’s estate, you may be involved in settling the estate. This can be a time-consuming and complex process, and you may wonder, do all estates have to go through probate in New Mexico? An Albuquerque estate planning lawyer can help answer that question.

Often, what happens to the property of the deceased individual will likely depend on how they have set up their estate prior to their death. They may have set their assets and property up into a trust, or have left a last will and testament that dictates how they want these assets and property divided up amongst their heirs. All of this can be extremely complicated. Thankfully, there are some cases in which the probate process can be avoided.

What Is the New Mexico Probate Process?

In general terms, probate is the legal process in which the distribution of the deceased individual’s estate occurs through the courts. There are several steps that are often included. This could be validating the will, if there is one, settling any debts the estate may carry, and, ultimately, distributing the assets held in the estate in accordance with the wishes of the deceased. Probate may be required whether there is a will in place or not.

New Mexico law creates a set of steps for probate that hopes to create a simple and uniform process for all estates passing through the courts. These steps include the following:

• Filing a petition that will initiate the probate process
• Appointing an executor: if the estate species who this individual is, otherwise the courts will appoint a representative
• Sending heirs, beneficiaries, and any creditors notifications of the upcoming probate process
• The payment of any outstanding debts or taxes owed by the estate
• The distribution of assets according to the terms of the deceased individual’s will

Situations Where Probate Can Be Avoided

The steps involved in the probate process can be overwhelming, and many individuals will seek a way to avoid it if they can. Thankfully, there are ways for an estate to bypass the probate process. The three main options one can use to avoid the probate courts include:

• Filing a Small Estate Affidavit: In New Mexico, smaller states can avoid the probate process. If the estate has a value that does not exceed $50,000 after accounting for any liens, exemptions, encumbrances, and other costs, it does not have to pass through probate. If your loved one’s estate qualifies for this, the beneficiaries can file an affidavit along with a copy of the deceased’s death certificate.
• Own a Residential Property as Community Property: The state of New Mexico operates under community property law, meaning that half of all the property obtained during the marriage is subject to an equitable split in a divorce or death. If one spouse dies, the other may be entitled to community marital property and avoid bringing these forms of property through probate.
• The Existence of a Trust: Certain parts of the estate may avoid probate if they are automatically transferred into a trust upon the individual’s death. A trust, with the assistance of an attorney, can be set up so that specific assets or properties are automatically transferred to named beneficiaries or heirs when the estate owner dies. Setting up a trust can be a complicated issue in estate planning and a lawyer can help.

How to Speed Up the Probate Process in New Mexico

Completing the probate process in a quick and efficient manner is often a concern for beneficiaries or heirs who wish to receive their inheritance. Speeding up this legal process can also help reduce certain fees. During the estate planning process, there are two ways in which the future probate process can be sped up.

• The preparation of a self-proving will
• Levering any non-probate assets such as trusts, life insurance policies, or bank accounts with named beneficiaries

FAQs

Q: How Much Does an Estate Planning Attorney Charge in New Mexico?

A: It can be difficult to offer an exact estimate as to how much an estate planning attorney might charge in New Mexico as each attorney is different, and so is each estate that passes through the probate process. However, there are common factors that can influence your attorney’s fee. These factors include the complexity and duration of the case and the experience, skill level, and effort of your attorney.

Q: How Long Does the Probate Process Take in New Mexico?

A: In New Mexico, the probate process can take a long time to complete, depending on certain factors involved in the estate. These factors can include the complexity of the estate, the number of assets and heirs involved, the value of the estate, and if any parts of the estate, such as the will, are contested by any party involved.

Q: What Happens If No Will Is Left Behind?

A: In New Mexico, if there is no will left behind in a deceased individual’s estate, it must pass through probate, no matter what the overall value of the estate is. This can not only cause an extreme burden for the parties involved, it can make the process much longer and more expensive. This is why it is important for an individual to set up a will with the assistance of an estate planning attorney.

Q: When Should a Trust Be Set Up in New Mexico?

A: In New Mexico, a trust should be set up if you want your family and your estate to avoid probate. Setting up a trust can also help protect your property and assets and ensure that items are distributed according to your wishes following your death. However, if you have a smaller estate, setting up a trust may not be necessary. You should speak with an experienced estate planning attorney.

Speak with a Trusted Albuquerque Estate Planning Lawyer Today

If you are setting up your estate for the future or are dealing with the estate of a loved one following their passing, the assistance of an estate planning lawyer from Gilchrist Law Firm, P.C. can help. We can review the details of the estate and help determine the right course of action to hopefully speed up or avoid probate. Contact our offices today to learn more.