What is an Heir?
As defined by the New Mexico Probate Code, heirs are persons “…including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of the decedent”. This means those people who would be entitled to inherit the decedent’s estate if the decedent (deceased person) died without a valid Will (intestate).
This is important because New Mexico law requires that the heirs of an estate be listed in an Application for Appoint-ment of Personal Representative, even if an heir is omitted from a Will or is specifically disinherited.
The Personal Representative of the estate is also required to give the heirs notice of his/ her appointment within ten days of the appointment. This requirement gives the heirs an opportunity to challenge the Will or appointment of Personal Representative.
DETERMINING WHO IS AN HEIR
Generally, the heirs of the decedent are their surviving spouse and children, including all of decedent’s biological children and adopted children.
- If decedent is married, decedent’s spouse is an heir;
- If decedent has children, his or her children may also be heirs (if one or more of decedent’s children has died, all children of the deceased child or children are also considered decedent’s heirs);
- If decedent has no spouse or children, decedent’s surviving parents are decedent’s heirs; both parents if both survive, or the surviving parent.
- If decedent has no surviving spouse, children, or parents, then decedent’s brothers and sisters are decedent’s heirs; (if one or more of decedent’s siblings has died, the children of the deceased sibling(s) are also heirs of the estate);
- If decedent has no siblings, decedent's grandparents are decedent’s heirs (if the grandparents are deceased, their children--decedent's aunts and uncles--are the heirs of the estate).
If no relatives of the decedent can be found, the estate “escheats” to the state school fund.
The names and complete addresses of the surviving spouse, children, heirs and devisees must be listed in the Application, along with the ages of any minor children. The heirs are determined according to the above criteria.
For example, if the decedent had no spouse, but had children, the Applicant lists the children (and children of any deceased children) and then stops. If the decedent had no spouse or children, then Applicant lists the parents, if any. If no parents, then the Applicant lists the next level of heirs, and so on. All devisees (people or entities named as beneficiaries in a Will) must also be listed, but not alternate devisees.
If you do not know who or where some of the heirs are, you have a duty to perform a reasonably diligent search for them. In New Mexico, any heir who fails to survive a decedent by 120 hours (5 days) is deemed to have died before the decedent.
OTHER POSSIBLE HEIRS?
Spouse from whom decedent is separated-Yes
Divorced spouse--No (but terms of the divorce decree may stipulate otherwise)
Fiancée or Significant other--No
Child adopted by decedent--Yes
Decedent’s biological child who was adopted by step-parent or relatives--Yes
Decedent’s biological child who was adopted by others--No
Stepchildren and foster children--No
Biological children born outside of marriage--Yes
Children born after the death of a parent—Yes
You can leave these people (or anyone else) anything you want to in your Will. Under the terms of your Will you can also restrict what people will inherit from your estate. A child may inherit from the estate of a parent who refused to support them, but a parent who has refused to support a child cannot inherit from the estate of that deceased child.
SHARE OF SPOUSE AND CHILDREN
Generally, unless a Will indicates otherwise, the surviving spouse receives all of the decedent's community property.
If a decedent had no children and no Will, the surviving spouse receives all of the decedent's separate property. If the decedent had children and no Will, the decedent’s children (or their heirs) receive 75% of the separate property, and the surviving spouse receives 25%. The terms of a Will can alter the distribution of a decedent's separate property.
The Personal Representative should be aware of family and personal property allowances, which are exempt from creditors and others with claims against the estate, and may apply even if a Will states other intentions.
DISTRIBUTION OF ESTATE ASSETS
If there is a valid Will, the assets of the decedent's estate are distributed according to the terms of the Will. If there is no valid Will, distribution of the estate is governed by the laws of intestate succession. The devisees or heirs of an estate can agree in writing to a different distribution.
You may see the terms per stirpes (the share of each deceased descendant is divided among his/her heirs) or by representation (the shares of the survivors of deceased descendants are pooled and divided into equal shares based on number of survivors on that level). By Representation is the concept used in New Mexico when there is no Will, but you may also see the term per stirpes used in a Will.
Note: The distribution of assets in "Payable/ Transfer on Death" accounts, life insurance, and retirement plans is governed by the beneficiary designation. These assets are not considered part of the probate estate. Even if you devise these assets to someone in a Will, the beneficiary designation determines distribution of the asset.
PRIORITY FOR APPOINTMENT AS PERSONAL REPRESENTATIVE
A Personal Representative of an estate must be at least 18 years old, and not otherwise disqualified to serve.
The person with first priority for appointment as Personal Representative is the person nominated in the Will of the decedent.
When a person dies without a valid Will, the priority for appointment of Personal Representative is determined by heirship.
- The person with first priority for appointment is the decedent’s surviving spouse.
- If there is no spouse, or the spouse declines to serve, the decedent’s children have equal priority for appointment (if there is a deceased child who has surviving children, those children also have an equal priority for appointment).
- If there is no spouse or children, decedent’s surviving parents have equal priority for appointment.
- If there is no surviving spouse, children, or parents, then decedent’s brothers and sisters have equal priority for appointment (if one or more of decedent’s siblings has died, the children of the deceased sibling(s) also have an equal priority for appointment).
- A creditor or other interested person may also serve as Personal Representative and has priority for appointment after all of the people listed above.
A person who has highest or equal priority to serve may decline to serve and confer his/her relative priority upon another, nominating him/her to serve as Personal Representative. This must be done in writing.
If the heirs cannot all agree on who will serve as Personal Representative, the case cannot be filed in the Probate Court. Instead, the appointment must be done in a formal probate proceeding in the District Court.
"I'm the oldest child, so I have priority to serve as Personal Representative."
TRUTH: All heirs have equal priority for appointment as Personal Representative.
"I had Power of Attorney, so I have priority to serve as Personal Representative."
TRUTH: A Power of Attorney expires when someone dies and does not give anyone higher priority for appointment.
"I paid all the bills, taxes, etc. on the property, so I'm entitled to inherit the property."
TRUTH: Although this might give you a claim against the estate, it does not give you the right to inherit the property.
"I'm the Personal Representative because I'm named in the Will."
TRUTH: The Will only sets out the decedent's intent that you be appointed Personal Representative. You are not legally the Personal Representative until the Court appoints you.
"So and so was left out of the Will, so they're not entitled to notice."
TRUTH: Heirs not named in the Will are still entitled to notice.
"The other heirs live out-of-state, so they are not entitled to appointment as Personal Representative."
TRUTH: The heirs have equal priority for appointment regardless of where they live.
"Illegitimate children who had no contact with the decedent are not entitled to notice or to inherit from estate."
TRUTH: Illegitimate children are still considered heirs and are entitled to notice and to inherit from the estate.
"So and so wasn't a citizen, so he can't inherit from the estate."
TRUTH: Not being a U.S. citizen doesn't prevent someone from inheriting from an estate.
"He raised me as his own."
TRUTH: Unless you were legally adopted or named in the Will, you are not entitled to inherit from the estate.
When is the reading of the Will?"
TRUTH: This usually only happens in the movies. Once a Will is probated, the Personal Representative must give notice to the spouse, children, heirs, and devisees.