2023 New Mexico Statutes › Chapter 34 - Court Structure and Administration › Article 7 - Probate Courts › Section 34-7-11 - Probate judge absent or unable to attend to duties.

A. Whenever a probate judge is absent, incapacitated or unable to attend to the probate judge's duties from any cause whatsoever, the probate judge shall enter a notice of unavailability and file the order with the clerk of the probate court; provided that if the judge is unable to prepare the notice due to incapacity, the clerk of the probate court shall prepare and file a notice of incapacitation.
B. Upon receipt of a notice of unavailability or after preparing a notice of incapacitation, the clerk of the probate court shall give written notice to the district court of the county in which the probate court is situate and the district court shall designate a district judge or another probate judge to hold court in the county and do all things that could otherwise be done by the probate judge of that county, without the necessity of having the matters or proceedings transferred from the docket of the probate court to the docket of the district court or the other probate court. If designating another probate judge, the district court shall give preference to probate judges serving within the same judicial district. Upon receipt by the clerk of the probate court of the designation by the district court, the clerk of the probate court shall send a copy of the designation to the parties or their counsel, to the designated district or probate judge and to the unavailable or incapacitated probate judge.
C. A probate judge acting in another probate district by designation as provided in this section shall include the cases heard by designation in the probate judge's own reports to the district court, indicating on the reports that the probate court's jurisdiction is by designation.
D. The board of county commissioners of the county of the unavailable or incapacitated probate judge shall reimburse the district judge or probate judge sitting by designation for expenses incurred pursuant to the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978].
History:
Laws 1933, ch. 101, § 1; 1941 Comp., § 16-414; Laws 1943, ch. 65, § 1; 1953 Comp., § 16-4-14; 1978 Comp., § 34-7-11; 2023, ch. 44, § 9.
ANNOTATIONS
Cross references.
— For performance of acts and orders when probate judge unable to act,
see
45-1-307 NMSA 1978.
The 2023 amendment,
effective July 1, 2023, provided procedures for designating a district judge or other probate judge when a probate judge is absent, incapacitated or unable to attend to the probate judge's duties for any cause; added the section heading "Probate judge absent or unable to attend to duties"; in Subsection A, after "absent", deleted "from the county wherein he was elected or shall be", after "unable to attend to", deleted "his" and added "the probate judge's", and after "whatsoever", deleted "any" and added "the probate judge shall enter a notice of unavailability and file the order with the clerk of the probate court; provided that if the judge is unable to prepare the notice due to incapacity, the clerk of the probate court shall prepare and file a notice of incapacitation"; in Subsection B, added "Upon receipt of a notice of unavailability or after preparing a notice of incapacitation, the clerk of the probate court shall give written notice to the district court of the county in which the probate court is situate and the district court shall designate a", after "district judge or", deleted "any other district" and added "another probate", and after "docket of the district court", deleted "The fact of such absence or incapacity shall be recited in every order of the district judge entered in accordance with this act" and added "or other probate court. If designating another probate judge, the district court shall give preference to probate judges serving within the same judicial district. Upon receipt by the clerk of the probate court of the designation by the district court, the clerk of the probate court shall send a copy of the designation to the parties or their counsel, to the designated district or probate judge and to the unavailable or incapacitated probate judge."; and added Subsections C and D.