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New Mexico Probate Judges Manual © 2003, 2005, 2006, 2007, 2011, 2013, 2015 (Reprint) by Merri Rudd and the Rozier E

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New Mexico Probate Judges Manual © 2003, 2005, 2006, 2007, 2011, 2013, 2015 (Reprint) by Merri Rudd and the Rozier E New Mexico Probate Judges Manual 2013 Edition Reprinted 2015 (without rules and statutes) by former Judge Merri Rudd with Lori Frank This publication has been provided for use by the New Mexico judiciary with public funds administered by the Judicial Education Center. It is the property of the court. No person may remove it from the premises of the court except for judges during their term of service and judicial personnel on official court business. New Mexico Probate Judges Manual © 2003, 2005, 2006, 2007, 2011, 2013, 2015 (reprint) by Merri Rudd and the Rozier E. Sanchez Judicial Education Center of New Mexico. All rights reserved. New Mexico Judicial Education Center Institute of Public Law University of New Mexico School of Law MSC11 6060 1 University of New Mexico Albuquerque, NM 87131-0001 Phone: (505) 277-5006 Fax: (505) 277-7064 http://jec.unm.edu/ This Manual is intended for educational and informational purposes only. It is not intended to provide legal advice. Readers are responsible for consulting the statutes, rules and cases pertinent to their issue or proceeding. Readers should keep in mind that laws and procedures may change. Chapter 1 1 Introduction to Probate 1 Chapter 2 2 Wills 2 Chapter 3 3 Personal Representatives and Special Administrators 3 Chapter 4 4 Probate Procedures 4 Chapter 5 5 Closing the Estate 5 Chapter 6 6 Records, Fees and Reporting 6 Chapter 7 7 How to Transfer a Case to District Court 7 Chapter 8 8 Judicial Conduct 8 Chapter 9 9 Real Property as Part of Estate 9 Chapter 10 10 Miscellaneous Topics 10 Chapter 11 11 Weddings Performed by Probate Judges 11 Chapter 12 12 Glossary 12 Chapter 13 13 Code of Judicial Conduct 13 Chapter 14 14 Selected New Mexico Statutes 14 Chapter 15 15 Resources 15 NEW MEXICO PROBATE JUDGES MANUAL TABLE OF CONTENTS Acknowledgements 1. Introduction to Probate 1.1. Overview 1.2. Workplace Requirements 1.2.1. County’s Obligation to Provide Office and Supplies 1.2.2. Location and Hours of Business 1.2.3. Probate Judge Salary and Term Limits 1.2.4. Probate Court Staff 1.3. Jurisdiction and Venue 1.3.1. Probate Court Jurisdiction 1.3.2. Exclusive District Court Jurisdiction 1.3.3. Domicile 1.3.4. Venue 1.3.5. Examples 1.4. When is a Probate Required? 1.4.1. Probate Estate, Defined 1.4.2. Gross Estate, Defined 1.4.3. Various Ways to Title Property 1.5. Intestate Succession 1.6. Medical Records and Unclaimed Property Act 2. Wills 2.1. Requirements for a Valid Will 2.1.1. Who May Make a Will? 2.1.2. What is Sound Mind? 2.1.3. Witness Requirements 2.1.4. Writing and Signature Requirements 2.2. Sections Contained in Wills 2.3. Other Kinds of Wills 2.3.1. Holographic Wills 2.3.2. Joint Wills 2.3.3. Mutual Wills 2.3.4. Wills with a Contract Not to Revoke 2.3.5. Pourover Wills 2.3.6. Living Wills 2.4. Locating the Will i 2.4.1. Safe Deposit Box 2.4.2. Placing a Will on Deposit with the District Court 2.4.3. Do Not Record a Will with the County Clerk’s Office 2.4.4. Leaving Original Will with Attorney Who Prepared It 2.5. Codicils to Wills 2.6. Judge’s Review of Original Will and Codicils, If Any 2.7. How to Revoke a Will 2.8. Tangible Personal Property List 3. Personal Representatives and Special Administrators 3.1. Personal Representatives 3.1.1. Who Has Priority to Serve? 3.1.2. What If Person With Highest Priority Does Not Want to Serve? 3.1.3. When Consents are Required 3.1.4. Co-Personal Representatives 3.1.5. Successor Personal Representatives 3.1.6. Resignation of Personal Representative 3.1.7. Removal of Personal Representative 3.1.8. Bond Required of Personal Representative 3.1.9. Limited Appointment of Personal Representative 3.1.10. Duties of Personal Representative 3.2. Special Administrators 3.2.1. Sample Order for Informal Appointment of Special Administrator 3.2.2. Sample Letters of Special Administration 3.2.3. Sample Order for Informal Appointment of Special Administrator, Medical Records Only 3.2.4. Sample Letters of Special Administration, Medical Records Only 4. Probate Procedures 4.1. Docketing Cases 4.1.1. To Docket or Not Docket a Case? 4.1.2. Just Because a Case is Docketed, Must the Judge Sign the Order? 4.1.3. Documents Filed with Court & Redaction of Sensitive Information 4.1.4. Docketing Checklist 4.1.5. Sequestered Cases 4.2. Probate Court Forms 4.2.1. Pro Se (Do-It-Yourself) Probate Forms 4.2.2. Other Probate Forms 4.3. Proof of Death 4.3.1. How Does a Judge Know the Decedent has Died? 4.3.2. Death Certificates 4.4. Format and Handling of Court Pleadings 4.5. Initial Probate Application 4.5.1. Required Elements ii 4.5.2. Common Errors on Initial Application 4.6. Initial Probate Order 4.6.1. Testate Orders, Form 4B-104 4.6.2. Intestate Orders, Form 4B-103 4.6.3. Other Orders Signed by the Judge 4.7. How to Issue Letters 4.7.1. How to Issue Updated Certified Letters 4.7.2. Sample Letters Testamentary – Original in Court File 4.7.3. Sample Letters Testamentary – Returned to Personal Rep or Attorney 4.8. Probate Case Checklist – Things to Watch For 4.9. Alternative Probate Application Forms 4.9.1. Sample Probate Application Form, Intestate (Commonly Used by Attorneys) 4.9.2. Sample Probate Application Form, Testate (Commonly Used by Attorneys) 4.10. Checklist of Informal Probate and Appointment Pleadings 5. Closing the Estate 5.1. Options for Closing the Estate in Probate Court 5.1.1. Verified Statement 5.1.2. Summary Administration 5.2. Certificate of Full Administration from the Court 5.3. Formal Closing 5.4. Estate Never Closed 5.5. Newly Discovered Property 5.6. Reopening Old Cases for Mistake or Inadvertence 6. Records, Fees and Reporting 6.1. Docket Sheets and Index 6.2. Court Costs and Fees 6.3. Retention and Public Record Requirements for Storing Cases 6.3.1. Storage of Old or Closed Files 6.3.2. Microfilm 6.3.3. Securing Files 6.3.4. Confidentiality v. Public Record 6.3.5. Accessibility to the Public – Inspection of Public Records Act 6.3.6. Court Rule re: Public Inspection of Court Records 6.3.7. Fees Allowed for Copies under Inspection of Public Records Act 6.3.8. Other Public Records 6.3.9. Other Record Retention 6.4. Reports to District Court 7. How to Transfer a Case to District Court 7.1. Reasons for Transferring a Case 7.2. Methods of Transfer iii 7.2.1. Transfer Initiated by Probate Court Order 7.2.2. Transfer Initiated by District Court Order 7.3. Sample Orders and Forms 7.3.1. Sample District Court Order to Probate Court to Transfer Case 7.3.2. Sample Form of Transmittal Memorandum for Transfer to District Court 7.3.3. Sample Order for Permanent Transfer to District Court 7.3.4. Sample Order of Recusal and Transfer to District Court 7.3.5. Sample Order for Transfer to District Court with Remand to Probate Court after Resolution of Dispute 7.3.6. Sample Order to Decline Jurisdiction “for any reason” 7.3.7. Sample Order of Recusal for “ex parte” Communications 8. Judicial Conduct 8.1. Overview of Ethical Requirements 8.1.1. Code of Judicial Conduct Canons 8.1.2. Code of Judicial Conduct “Golden Rules” 8.1.3. General Do’s and Don’ts 8.2. Communications by Judge with Parties 8.2.1. Ex Parte Communications by Judge and Staff 8.2.2. Staff Contact with Self-Represented Applicants 8.2.3. Obtaining Advice about a Case 8.3. Behavior at Court 8.4. Behavior Outside of Court 8.5. Community Activity for Probate Judges 8.5.1. Exemptions for Probate Judges 8.5.2. Examples 8.6. Political Activity for Probate Judges 8.6.1. Probate Judges as Judicial Candidates 8.6.2. Exemptions for Probate Judges 8.6.3. Examples 8.7. Disciplinary Action Against Probate Judges 8.8. Unauthorized Practice of Law 8.8.1. Providing Forms v. Filling Out Forms 8.8.2. Paralegals 8.8.3. Unauthorized Practice of Law (UPL) Statutes 8.8.4. Examples of Unauthorized Practice of Law Related to Probate 8.8.5. Pro Hac Vice (Non-New Mexico Attorneys) 8.9. Safety Valves for Probate Judges 9. Real Property as Part of Estate 9.1. Overview of Estates with Real Property 9.2. Probate Opened in Your County, with Real Property Located in New Mexico but Outside of Your County 9.3. Real Property Located Outside of New Mexico iv 9.3.1. Simultaneous (Dual) Probates in Two Different States 9.3.2. Ancillary Proceedings 9.4. Proof of Authority 9.5. Manufactured (Mobile) Homes as Part of Estate 9.6. Flowchart: Decedent Domiciled in New Mexico with Real Property as Part of the Estate 9.7. Flowchart: Out-of-State Decedent 9.8. Table: Differences Between Proof of Authority and Ancillary or Dual Proceeding 10. Miscellaneous Topics 10.1. Bonds 10.2. Agreements Among Successors 10.3. Disclaimer Statutes 10.4. Family/Personal Property Allowances 10.5. Omitted Spouse and Children 10.6. Collection of Decedent’s Final Paycheck 10.7. Creditors’ Claims and Demands for Notice 10.7.1.
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