Losing a loved one is difficult, but making any sort of legal claim after a relative has passed is even more difficult.
New Mexico follows the Uniform Probate Code and the Probate process can help people make claims resulting from injuries or property damage resulting from the Hermits Creek Calf Canyon Fires and Floods, on behalf of a deceased individual. Even if they were not killed as a result of the fire, surviving family members may be eligible to make a claim after they follow the New Mexico Probate process. This process is known as “probate.”
What is Probate?
Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the "decedent") to his or her beneficiaries/heirs.
There are two types of Probate in New Mexico: Formal and Informal Probate.
Usually, you have to fill out court forms and appear in court to:
- Provide the Last Will and Testament, if one exists,
- Appoint a Personal Representative with authority to act on behalf of the decedent,
- Identify and inventory the decedent's property, and have that property appraised,
- Pay debts and taxes, and
- Distribute the remaining property according to the terms of the Will or to the decedent's heirs.
Is probate necessary?
If the person who died did not have any property to transfer, probate is usually not necessary. The deceased person’s survivors may decide to open a probate if there are debts owed or if there is a need to set a deadline for creditors to file claims. When there is property to transfer, the probate process also provides for the distribution of the estate's property to the decedent's heirs. It is always best to consult an attorney to determine of a Probate is required.
Does all property go through probate when a person dies?
No. The term "probate estate" refers to any property subject to the authority of the probate court. Assets distributed outside the probate process are part of a person's “non-probate estate.”
Wrongful Death in a Probate Court
In New Mexico, if a person dies as a result of the negligent conduct or wrongful acts of another, the responsible person can be sued in court for damages.
An estate must be opened for the deceased person. Then, a court appointed person, known as the Executor or Personal Representative, is legally authorized to commence a legal action against the wrongdoer for damages for the loss caused by the victim's death.
Once the legal action commenced by the executor or administrator in the general division has been determined, any money damages awarded to the family of the deceased person must be disbursed to the family members. This disbursement must be approved by the probate court via a wrongful death action.
Anyone Seeking Payment from Descendants Estate
Usually, creditor claims must be filed within one year of the decedent's death by anyone seeking payment from decedent’s estate and must file a timely creditor’s claim form with the probate court.
When a decedent dies owing large debts the surviving beneficiaries of the estate may delay administration of the descendants estate until past the 1 year anniversary of the descendants death to time bar creditors claims. Most creditor claims become unenforceable unless filed within the first year in the probate proceedings of the decedent.
During the first four months of commencing Probate, the decedent's personal representative notifies all reasonably ascertainable creditors. A creditor then has until the end of four months (but at least sixty days) to file a timely claim with the court.
Does my case need to go through Probate?
Attorneys at Singleton Schreiber are working with thousands of people throughout the areas of New Mexico impacted by the fires and floods. Our team can help walk you through the claims process and give you the opportunity to receive maximum compensation from the fund for you and your loved ones. We can also explain the probate process and how to make a claim on behalf a deceased family member who had property, a business or suffered some injury resulting from these horrible disasters. We have teamed up with local attorneys to handle the probate process and give our clients peace of mind.
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