The death of a loved one in a car accident is a painful experience. The last thing you want to do while grieving is work through a complicated legal process. That’s why we recommend that, before you dive into the details of probate, you take the time to care for yourself and your loved ones. Once you’re ready, you can start the process of educating yourself about probate—including how to avoid surprises and help the process run as smoothly as possible.
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What is Probate?
Probate is a legal process that determines how a person’s assets are distributed after they die. While a will represents the deceased’s wishes, probate ensures that those wishes are carried out as closely as possible while ensuring that legal requirements are met, debts are settled, taxes are paid, and assets can be safely distributed to heirs.
It’s important to note that probate laws vary by state. The possible variations in state law mean that, in addition to the general guidelines we cover here, you’ll want to research the laws in your state and possibly hire a lawyer if the will or financial situation is complex.
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Some people believe that having a will means probate won’t occur. That’s just a myth: Probate happens more often than not, and is almost always needed when there’s a wrongful death suit.
When Does Probate Occur in New Mexico?
Probate occurs when:
- The deceased’s assets exceed the limit set by the state. That’s $50,000 in New Mexico after subtracting liens and encumbrances from the total.
- The deceased has a surviving spouse, and the only asset requiring probate is their home if that home is valued at more than $500,000.
If the estate’s value is under both limits, you may qualify for a simplified “small estate” probate process. Additionally, property held in a living trust is generally not subject to probate.
Probate also becomes necessary in a few less-common situations:
- The will is determined to be invalid. Invalid wills tend to occur when the will itself wasn’t written clearly or in a legal manner, or when the deceased was determined to be mentally incompetent or under duress when they created or signed the will.
- There is no will. If there is no will, the probate court will determine the equitable distribution of the deceased’s assets to the heirs according to the relevant laws.
- The deceased was the sole owner of the assets. In the case of most property held solely by the deceased, probate will be necessary to transfer property to a beneficiary. Property jointly owned by a surviving spouse is not subject to this requirement.
- The assets were owned as a joint tenancy. When a couple owns property jointly in a common-law marriage, probate will be required to distribute the property to the heirs.
- The deceased has no living beneficiaries. If the beneficiaries listed in the will or the law have “predeceased” the decedent (i.e., died first), probate will be used to distribute the estate according to state laws.
These scenarios happen all the time but are more common when there’s a surprise death in the family. In the case of a death due to a car accident, it’s more common for a will to be absent, especially when the decedent is young.
Who Handles Probate?
The executor is responsible for the probate process. In most cases, the will names the executor, and a court confirms that person as the executor. If the will doesn’t name an executor, the probate court will assign one.
Executors are responsible for:
- Filing a petition with the court to open probate in the county where the decedent lived. In New Mexico, executors must file probate within three years of the person’s death, but probate cannot begin until at least 120 hours have passed since the person’s death.
- Inventorying and securing all assets in the estate, plus having them appraised, if necessary.
- Notifying creditors that the decedent has passed and paying all of the estate’s debts.
- Filing any necessary tax returns and paying any owed taxes.
- Distributing assets to the heirs once all debts have been settled.
How Long Does Probate Take?
The time probate takes can vary greatly, from as little as a few months to a year or longer. The most significant factor that determines how long probate takes is the size and complexity of the estate. The more complex the estate, the longer probate generally takes. Other factors that can increase the time spent in probate include an invalid will, large or numerous debts, legal challenges from creditors, complex business interests, and taxable assets.
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If one or multiple heirs dispute the will, the length of time it takes to complete probate can increase dramatically. The best way to reduce the amount of time probate takes is to have a clear and legally valid will. Setting up a living trust to pay for probate expenses and settling debts can also speed up the process.
If you find yourself as the executor in a probate process, where the decedent wrongfully died in a car or truck crash, the best thing you can do is contact a lawyer early in the process, to ensure that both processes run as smoothly as possible.
How Much Does Probate Cost?
As with the time that probate takes, the cost varies based on the situation’s complexity. Factors include:
Fees paid to the court during probate usually don’t run more than a few hundred dollars.
Wills frequently set the fees that will be paid to executors. If that isn’t the case, state laws govern how much the executor will be paid.
Lawyers usually aren’t involved in simpler estates, but they get paid at a rate determined by state law for the more complex ones.
Sometimes, an attorney specializing in probate will cover this portion of the process themselves, but if you need an outside accountant to file taxes or help close out investments, expect to pay a fee.
How is Probate Handled in New Mexico?
Probate is never a fun process, and the loss of a loved one is always a difficult life event. Dealing with probate on top of the grieving process can feel like it’s too much to bear.
Having an attorney in your corner early in the process can enable you to focus on the things that really matter while ensuring there is someone taking care of probate. When you engage an attorney early, we can help you avoid common mistakes and help the process run smoothly and without surprises.
Disclaimer: Please note that this article was created for advertisement purposes, and it does not constitute any contractual legal relationship, nor imply one.