Probate is the judicial process for transferring the property of a person who has died (called a decedent).  The property is transferred according to either:

1. the decedent’s Will, or
2. according to New Mexico’s laws of interstate succession if the decedent died without a Will.

 
The probate court appoints legally qualified persons (called personal representatives) to manage and settle the decedent’s business affairs.  Personal representatives pass the deceased person’s estate property - real and personal - to the rightful recipients.  Recipients might include heirs, devisees named in a valid and current will, or creditors. 

State law limits the jurisdiction of the Probate Courts to:

• Admitting Wills to informal probate
• Appointing personal representatives informally (without a hearing)
• Appointing Special Administrators for estates
• Issuing Certificates of Full Administration of the estate

State law also allows Probate Judges to perform marriages within their county only. Judge Bustamante does not perform marriages. Please contact the County Clerk's Office for a list of registered officiants.

No matter when or where a Will was originally made, you would use the Dona Ana County Probate Court if:

• The decedent was domiciled in Dona Ana County at the time of death (i.e. Dona Ana County was the permanent place of decedent’s abode), or,
• The decedent lived outside of New Mexico but owned property in Dona Ana County

Formal probates, determinations of heirship, contested cases, and trust matters cannot be heard by the Probate Court, but instead must be filed in the District Court.

In addition to handling informal probate cases, the probate Court provides general information on process (how to file), record (what is on file, title searches and wills) and information about court history.

Not all estates require a probate or a personal representative. Much depends on how the decedent’s property was titled. But when a probate is necessary, the person seeking appointment as Personal Representative applies to the Probate Court (or the District Court) to obtain authority to act on behalf of the decedent’s estate.

Normally, a probate must be filed within three years following the decedent’s death. New Mexico law says that no probate may be filed during the first 120 hours (5 days) following the death.

Once a probate case is filed, it should be kept open until all creditors receive notice, make claims, taxes are paid and estate assets are distributed. Once the probate is closed, the Personal Representative no longer has authority to act for the Estate.

The docket fee to file for informal probate in the Probate Court is $30.00. Certification of filed documents is $1.00 per document. To have files copied by the Court costs $1.00 per page. The court accepts debit/credit cards ($3.00 processing fee applies), cash, checks, money orders or cashier’s checks.
 
If probate applications are being dropped off for review, please note that only checks, money orders, or cashier’s checks payable to Doña Ana County Clerk are accepted. We do not accept cash or credit cards in this instance.

DOCUMENTS NEEDED TO OPEN A PROBATE:

• Original and valid will (including codicils)
• Death certificate
• Marriage certificate

The initial Application must include an original Death Certificate.

Estate papers (called pleadings), the original Will, if any, and proper payment are presented together to the Court for review and appointment of the personal representative and/or probate of the Will, if any. The initial Application must be signed by the applicant in the presence of a notary public and should include an original Death Certificate. Applicants must submit complete, accurate, and truthful pleadings to the Court.

If, for any reason, the Court does not accept the estate, all payments and pleadings are returned to the applicant. Once the Court opens the probate case, no refunds are possible, but a receipt is given to the filing party.

Each pleading is presented with original  documents. The Court keeps the original and returns endorsed copies to the filing party. The use of white out is not permitted, mistakes can be lined through and initialed. Documents should be printed single sided.

Once the Judge signs the Order appointing the Personal Representative, the Court issues Letters Testamentary (in cases where the decedent left a valid will) or Letters of Administration (in cases where the decedent did not leave a valid will). These Letters give the Personal Representative legal authority to conduct the decedent’s estate business.

Examples of matters to arise in a probate case include, but are not limited to:

• Legally changing title to real property owned by the decedent to name of new owner(s)
• Legally changing title to personal property, such as bank accounts, stocks , bonds, etc.
• Paying creditors
• Filing decedent’s income taxes and estate taxes, if necessary

Probate Court cases can be filed with or without the help of an attorney. Do-it-yourself forms are available. These forms can be downloaded for free from the Supreme Court’s web site: nmsupremecourt.nmcourts.gov or purchased for $5.00 from the Court. Sometimes after reviewing the packet of paperwork involved and the responsibilities of serving as personal representative of an estate, people will hire an attorney. Knowing when to obtain competent legal services when needed is essential. The Court can provide information, but not legal services.

For additional information, see New Mexico Statutes Annotated (NMSA) 1978, Chapter 45, Pamphlet 67 (Uniform Probate Code).