reglab/statecodes huggingface dataset:
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 1 - SHORT TITLE, CONSTRUCTION AND GENERAL PROVISIONS › Section 45-1-108 - Acts by holder of general power.

For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or deviation from its terms, the sole holder or all co-holders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests, as objects, takers in default or otherwise, are subject to the power.
History:
1953 Comp., § 32A-1-108, enacted by Laws 1975, ch. 257, § 1-108; 2016, ch. 69, § 701.
ANNOTATIONS
The 2016 amendment,
effective July 1, 2016, amended the applicable acts by a holder of general power of appointment that are deemed to be on behalf of beneficiaries; after the heading, deleted the subsection designation "A", and in the first sentence of former Subsection A, after "representative or trustee", added "including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or deviation from its terms"; and deleted Subsection B.
If beneficiaries unidentified, power not created.
— The language of the decedent's will was insufficient to create a valid power of appointment, since it failed to identify with reasonable certainty the class of persons or entities from whom the beneficiaries could be selected under a power of appointment, nor did the will give the holder the unrestricted power to select any individuals or entities as beneficiaries. Under these circumstances, the purported power of appointment was too ambiguous to be enforced.
In re Estate of Boyer
, 1994-NMCA-005, 117 N.M. 74, 868 P.2d 1299.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
62 Am. Jur. 2d Powers of Appointment and Alienation §§ 85 to 234.
Share of beneficiary of trust or of decedent's estate, who is also trustee or executor or administrator, as subject to charge in respect of his liability in his fiduciary capacity, 123 A.L.R. 1320.
Accountability of personal representative for his use of decedent's real estate, 31 A.L.R.2d 243.
Power and standing of personal representative of deceased promisee to enforce a contract made for benefit of a third party, 76 A.L.R.2d 231.
72 C.J.S. Powers §§ 12 to 20.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 1 - SHORT TITLE, CONSTRUCTION AND GENERAL PROVISIONS › Section 45-1-109 - Security interests not affected.

No provision of the [Uniform] Probate Code alters or affects the right of a secured creditor to enforce his security interest against secured property included in the estate of a decedent.
History:
1953 Comp., § 32A-1-109, enacted by Laws 1975, ch. 257, § 1-109.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
21 Am. Jur. 2d Creditors' Bills § 39.
21 C.J.S. Creditor and Debtor § 96.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 1 - SHORT TITLE, CONSTRUCTION AND GENERAL PROVISIONS › Section 45-1-110 - Time of taking effect; provisions for transition.

Except as provided elsewhere in the Uniform Probate Code, on the effective date of this code or of any amendment to this code:
A. the code or the amendment applies to governing instruments executed by decedents dying thereafter;
B. the code or the amendment applies to any proceedings in court then pending or thereafter commenced regardless of the time of the death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of this code or the amendment;
C. every personal representative or other fiduciary holding an appointment under this code on that date continues to hold the appointment but has only the powers conferred by this code or the amendment and is subject to the duties imposed with respect to any act occurring or done thereafter;
D. an act done before the effective date in any proceeding and any accrued right is not impaired by this code or the amendment. If a right is acquired, extinguished or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before the effective date, the provisions shall remain in force with respect to that right; and
E. any rule of construction or presumption provided in this code or the amendment applies to governing instruments executed before the effective date unless there is a clear indication of a contrary intent in the governing instrument.
History:
1978 Comp., § 45-1-110, enacted by Laws 1995, ch. 210, § 1; 2011, ch. 124, § 4.
ANNOTATIONS
The 2011 amendment,
effective January 1, 2012, in Subsection E, required that the intent not to apply the rules of construction or presumption provided in the Uniform Probate Code to a governing instrument must be indicated in the governing instrument.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 3 - SCOPE, JURISDICTION AND COURTS › Section 45-1-302.1 - Concurrent jurisdiction.

The district courts have concurrent jurisdiction with the probate courts in each county within their respective judicial district as to all matters concerning informal probate.
History:
1953 Comp., § 32A-1-302.1, enacted by Laws 1977, ch. 121, § 2.
ANNOTATIONS
Cross references.
— For jurisdiction and powers of district courts,
see
N.M. Const., art. VI, § 13.
For jurisdiction and powers of probate court,
see
N.M. Const., art. VI, § 23.
For probate courts,
see
34-7-1 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
20 Am. Jur. 2d Courts § 71.
30A C.J.S. Equity § 60.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 3 - SCOPE, JURISDICTION AND COURTS › Section 45-1-303 - Venue; multiple proceedings; transfer.

A. Subject to the provisions of Sections 45-1-302 and 45-3-201 NMSA 1978 and Chapter 45, Article 5 NMSA 1978 and the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act [Chapter 45, Article 5A NMSA 1978], if a proceeding under the Uniform Probate Code could be maintained in more than one place in New Mexico, the court in which the proceeding is first commenced has the exclusive right to proceed.
B. If proceedings concerning the same estate, protected person or trust are commenced in more than one court of New Mexico, the court having jurisdiction in which the proceeding was first commenced shall continue to hear the matter and the other courts shall hold the matter in abeyance until the question of venue is decided. If the ruling court determines that venue is properly in another court having jurisdiction, it shall transfer the proceeding to the other court.
C. If a court finds that in the interest of justice a proceeding or a file should be located in another court of New Mexico having jurisdiction, the court making the finding may transfer the proceeding or file to the other court.
History:
1953 Comp., § 32A-1-303, enacted by Laws 1975, ch. 257, § 1-303; 2009, ch. 159, § 21; 2011, ch. 124, § 8.
ANNOTATIONS
The 2011 amendment,
effective January 1, 2012, made the venue of proceedings under the code subject to Section 45-1-302 NMSA 1978, Chapter 45, Article 5 NMSA 1978, and the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.
The 2009 amendment,
effective June 19, 2009, in Subsection B, after "protected person", deleted "ward".
Transfer of proceeding to another court within trial court's discretion.
In re Estate of Ruther
, 1981-NMCA-078, 96 N.M. 462, 631 P.2d 1330.
Law reviews.
— For survey, "Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration," see 6 N.M.L. Rev. 213 (1976).
For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983).
For annual survey of New Mexico law relating to estates and trusts, see 13 N.M.L. Rev. 395 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
77 Am. Jur. 2d Venue §§ 25, 56, 75.
92 C.J.S. Venue § 5.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 3 - SCOPE, JURISDICTION AND COURTS › Section 45-1-304 - Civil practice.

Unless specifically provided to the contrary in the [Uniform] Probate Code, or unless inconsistent with its provisions, the Rules of Civil Procedure govern formal and informal proceedings under the code.
History:
1953 Comp., § 32A-1-304, enacted by Laws 1975, ch. 257, § 1-304; 1978, ch. 159, § 3.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For Rules of Civil Procedure in the District Courts,
see
1-001 NMRA.
Law reviews.
— For survey, "Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration," see 6 N.M.L. Rev. 213 (1976).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
80 Am. Jur. 2d Wills § 1024.
95 C.J.S. Wills § 422.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 3 - SCOPE, JURISDICTION AND COURTS › Section 45-1-305 - Records and certified copies.

A. The clerk of the district court and the clerk of the probate court shall each keep a record for each decedent, protected person or trust involved in any document that may be filed with the clerk's respective court under the Uniform Probate Code, including petitions and applications, demands for notices or bonds and orders by the respective court, and responses relating thereto, and shall establish and maintain a system for indexing, filing or recording that is sufficient to enable users of the records to obtain adequate information. Upon payment of the fees required by law, the clerk shall issue certified copies of any probated wills, letters issued to personal representatives or any other record or paper filed or recorded. Certificates relating to probated wills shall indicate whether the decedent was domiciled in New Mexico and whether the probate was formal or informal. Such certificates shall also indicate the names and addresses of any known heirs. Certificates relating to letters shall show the date of appointment.
B. If convenient or desirable for any reason, the presiding district judge for each judicial district shall have the power, at the judge's discretion, to order that the records of informal probate proceedings of a particular county be kept under the supervision of the probate court or clerk of the probate court of that county for such period of time as the district judge may determine.
History:
1953 Comp., § 32A-1-305, enacted by Laws 1975, ch. 257, § 1-305; 1983, ch. 194, § 2; 2009, ch. 159, § 22.
ANNOTATIONS
The 2009 amendment,
effective June 19, 2009, in Subsection A, after "each decedent" deleted "ward".
Am. Jur. 2d, A.L.R. and C.J.S. references. —
79 Am. Jur. 2d Wills § 730.
71 C.J.S. Pleading § 33.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 3 - SCOPE, JURISDICTION AND COURTS › Section 45-1-306 - Jury trial.

If demanded, in the manner provided by the Rules of Civil Procedure, a party is entitled to a trial by jury in a formal testacy proceeding and in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right to trial by jury.
History:
1953 Comp., § 32A-1-306, enacted by Laws 1975, ch. 257, § 1-306.
ANNOTATIONS
Cross references.
— For Rules of Civil Procedure in the District Courts,
see
1-001 NMRA.
For demand for jury trial,
see
1-038 NMRA.
Will contest generally.
— One is entitled to demand a jury trial as of right when contesting a will.
In re Will of Ferrill
, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489.
Jury trial demand subsequent to start of informal proceedings.
— Before the informal testacy proceeding could continue with administration, the validity of decedent's will had to be determined, which required a hearing before a trier of the fact, and the party who petitioned for formal probate of the will was entitled to the jury trial he demanded.
In re Estate of Ruther
, 1981-NMCA-078, 96 N.M. 462, 631 P.2d 1330.
Ambiguity in will.
— Since there was no ambiguity in joint will executed by decedent and his wife, contestants were not entitled to a jury trial.
Naranjo v. Armijo
, 2001-NMSC-027, 130 N.M. 714, 31 P.3d 372.
Timeliness of jury demand.
— In a probate proceeding, the jury demand may be filed not later than ten days after service of the objections; provided that such date is a reasonable amount of time prior to the date set for hearing and the district court does not find that the jury demand was filed solely for purposes of delay or other improper purpose.
Morlock v. Lozoya
, 2001-NMCA-030, 130 N.M. 258, 23 P.3d 933.
Untimely jury demand.
— A party in a formal testacy proceeding has a right to a jury trial and the court has the discretion to allow a jury trial if the jury demand is not timely.
In re Will of Ferrill
, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489, cert. quashed, 89 N.M. 51, 644 P.2d 1040 (1982).
Waiver of twelve member jury.
— The right to a jury of twelve members is waived if a jury demand is not timely filed.
In re Will of Ferrill
, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489, cert. quashed, 89 N.M. 51, 644 P.2d 1040 (1982).
Law reviews.
— For annual survey of New Mexico law relating to estates and trusts, see 13 N.M.L. Rev. 395 (1983).
For note, "Undue Influence in Wills - Evidence - Testators' Position Changes After In re Will of Ferrill," see 13 N.M.L. Rev. 753 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
80 Am. Jur. 2d Wills § 1026.
50 C.J.S. Juries §§ 13, 56.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 3 - SCOPE, JURISDICTION AND COURTS › Section 45-1-307 - Repealed.

History:
1953 Comp., § 32A-1-307, enacted by Laws 1975, ch. 257, § 1-307; 1978 Comp., § 45-1-307, repealed by Laws 2023, ch. 44, § 16.
ANNOTATIONS
Repeals.
— Laws 2023, ch. 44, § 16 repealed 45-1-307 NMSA 1978, as enacted by Laws 1975, ch. 257, § 1-307, relating to probate court, powers, effective July 1, 2023. For provisions of former section,
see
the 2022 NMSA 1978 on
NMOneSource.com
.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 3 - SCOPE, JURISDICTION AND COURTS › Section 45-1-308 - Appeals from district court.

Appellate review, including the right to appellate review, interlocutory appeal, provisions as to time, manner, notice, appeal bond, stays, scope of review, record on appeal, briefs, arguments and power of the appellate court, is governed by the rules applicable to civil appeals to the court of appeals from the district court.
History:
1953 Comp., § 32A-1-308, enacted by Laws 1975, ch. 257, § 1-308.
ANNOTATIONS
Cross references.
— For the Rules of Appellate Procedure,
see
12-101 NMRA.
Nonparty attorney's standing to appeal a district court's order striking the attorney's entry of appearance.
— Where a court-appointed guardian for an incapacitated person, without the permission of the district court or approval of the conservator for the incapacitated person, hired an attorney to represent the incapacitated person, and where the district court struck the attorney's entry of appearance, holding that the guardian did not have the authority to hire an attorney for the incapacitated person, the nonparty attorney had the right to appeal on his own behalf because he participated in certain court proceedings as an attorney hired to represent the incapacitated person initiated by the court-appointed guardian's request that the district court determine whether the guardianship continued to be necessary, and the district court's order striking the attorney's entry of appearance and barring him from further contact with the incapacitated person directly and sufficiently aggrieved the attorney such that this section affords him the right to appeal that order, even though he did not participate as a party below.
Richards v. McEachern
, 2020-NMCA-023.
Law reviews.
— For survey, "Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration," see 6 N.M.L. Rev. 213 (1976).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
80 Am. Jur. 2d Wills § 1063.
Appealability of probate orders allowing or disallowing claims against estate, 84 A.L.R.4th 269.
5 C.J.S. Appeal and Error § 707 et seq.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 3 - SCOPE, JURISDICTION AND COURTS › Section 45-1-310 - Oath or affirmation on filed documents.

Except as otherwise specifically provided in the [Uniform] Probate Code or by rule, every document filed with the court under the code, including applications, petitions and demands for notice, shall be deemed to include an oath, affirmation or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed, and penalties for perjury may follow deliberate falsification therein.
History:
1953 Comp., § 32A-1-310, enacted by Laws 1975, ch. 257, § 1-310.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Law reviews.
— For survey, "Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration," see 6 N.M.L. Rev. 213 (1976).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
61A Am. Jur. 2d Pleading §§ 2, 26.
2A C.J.S. Affidavits § 20.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 4 - NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS › Section 45-1-402 - Notice; waiver.

A person, including a guardian ad litem, conservator or other fiduciary, may waive notice either by a writing signed by the person and filed in the proceeding or by appearance in the proceeding. A person for whom a guardianship or other protective order is sought or a protected person may not waive notice.
History:
1953 Comp., § 32A-1-402, enacted by Laws 1975, ch. 257, § 1-402; 1995, ch. 210, § 3; 2009, ch. 159, § 23.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Laws official comment to 1-402 UPC.
The 2009 amendment,
effective June 19, 2009, after "protective order is sought", deleted "a ward".
The 1995 amendment,
effective July 1, 1995, added the second sentence.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
61A Am. Jur. 2d Pleading § 396.
71 C.J.S. Pleading §§ 507, 564.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 4 - NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS › Section 45-1-403 - Pleadings.

In formal proceedings involving trusts, or estates of decedents, minors, protected persons or incapacitated persons, and in judicially supervised settlements, interests to be affected shall be described in pleadings that give reasonable information to owners by name or class, by reference to the instrument creating the interests or in another appropriate manner.
History:
1953 Comp., § 32A-1-403, enacted by Laws 1975, ch. 257, § 1-403; 2009, ch. 159, § 24; 2011, ch. 124, § 9; 2016, ch. 69, § 703.
ANNOTATIONS
The 2016 amendment,
effective July 1, 2016, removed provisions regarding when certain parties are bound by orders that bind others, and removed certain appointment and notice provisions regarding representation of certain persons when the district court determines that representation of certain interests is inadequate; in the catchline, after "pleadings", deleted "when parties bound by others; notice", in the introductory sentence, after "settlements", deleted "the following rules apply", deleted the subsection designation "A", and deleted Subsections B, C, D and E, which related to the scope of certain orders, the representation of minor children in formal proceedings or judicially supervised settlements, the notice of formal proceedings or judicially supervised settlements, and the appointment of guardians ad litem.
The 2011 amendment,
effective January 1, 2012, provided that an order binding the sole holders of a general testamentary power of appointment binds other persons to the extent their interest is subject to the testamentary power and that a minor or an incapacitated person is bound by an order to the extent their interests are represented by another party having the same interest in the proceeding and permits a parent to represent a minor child if no conservator or guardian has been appointed.
The 2009 amendment,
effective June 19, 2009, in Subparagraph (b) of Paragraph (2) of Subsection B, after "guardian bind the", deleted "ward" and added "protected person".
Subsection B of 45-1-403 NMSA 1978 is not exclusive
and does not prevent others from being bound.
In re Protective Proceeding for Strozzi
, 1991-NMCA-057, 112 N.M. 270, 814 P.2d 138.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
31 Am. Jur. 2d Executors and Administrators §§ 158 to 178; 61A Am. Jur. 2d Pleading §§ 84, 96; 80 Am. Jur. 2d Wills §§ 1035 to 1062.
Administration on estate of one as absentee as affecting one not notified whose relationship to absentee had its inception after his disappearance, 26 A.L.R. 965.
Right of agent or personal representative to make election for legatee or devisee to take under or against will, 83 A.L.R.2d 1077.
Duty and liability of executor with respect to locating and noticing legatees, devisees or heirs, 10 A.L.R.3d 547.
71 C.J.S. Pleading §§ 288, 290; 96 C.J.S. Wills §§ 1062, 1070.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 4 - NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS › Section 45-1-403.1 - Representation; basic effect.

A. Notice to a person who may represent and bind another person pursuant to the provisions of Chapter 45 NMSA 1978 has the same effect as if notice were given directly to the other person.
B. The consent of a person who may represent and bind another person pursuant to the provisions of Chapter 45 NMSA 1978 is binding on the person represented unless the person represented objects to the representation before the consent would otherwise have become effective.
C. Except as otherwise provided in Sections 46A-4-411 and 46A-6-602 NMSA 1978, a person who, pursuant to the provisions of Chapter 45 NMSA 1978, may represent a settlor who lacks capacity, may receive notice and give a binding consent on the settlor's behalf.
D. A settlor shall not represent or bind a beneficiary pursuant to the provisions of Chapter 45 NMSA 1978 with respect to the termination or modification of a trust under Subsection A of Section 46A-4-411 NMSA 1978.
History:
1978 Comp., § 45-1-403.1, enacted by Laws 2016, ch. 69, § 704.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727A made Laws 2016, ch. 69, §§ 701 through 723 effective July 1, 2016.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 4 - NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS › Section 45-1-403.2 - Representation by holder of general testamentary power of appointment.

To the extent there is no conflict of interest between the holder of a general testamentary power of appointment and the persons represented with respect to the particular question or dispute, the holder may represent and bind persons whose interests, as permissible appointees, takers in default or otherwise, are subject to the power.
History:
1978 Comp., § 45-1-403.2, enacted by Laws 2016, ch. 69, § 705.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727A made Laws 2016, ch. 69, §§ 701 through 723 effective July 1, 2016.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 4 - NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS › Section 45-1-403.3 - Representation by fiduciaries and parents.

To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:
A. a conservator may represent and bind the estate that the conservator controls;
B. a guardian may represent and bind the protected person if a conservator of the protected person's estate has not been appointed;
C. an agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
D. a trustee may represent and bind the beneficiaries of the trust;
E. a personal representative of a decedent's estate may represent and bind persons interested in the estate; and
F. a parent may represent and bind the parent's minor or unborn child if a conservator or guardian for the child has not been appointed.
History:
1978 Comp., § 45-1-403.3, enacted by Laws 2016, ch. 69, § 706.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727A made Laws 2016, ch. 69, §§ 701 through 723 effective July 1, 2016.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 4 - NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS › Section 45-1-403.4 - Representation by person having substantially identical interest.

Unless otherwise represented, a minor, incapacitated or unborn person, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular question or dispute, but only to the extent that there is no conflict of interest between the representative and the person represented.
History:
1978 Comp., § 45-1-403.4, enacted by Laws 2016, ch. 69, § 707.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727A made Laws 2016, ch. 69, §§ 701 through 723 effective July 1, 2016.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 4 - NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS › Section 45-1-403.5 - Appointment of representative.

A. If the court determines that an interest is not represented under Chapter 45 NMSA 1978, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent and otherwise represent, bind and act on behalf of a minor, incapacitated or unborn person, or a person whose identity or location is unknown. A representative may be appointed to represent several persons or interests.
B. A representative may act on behalf of the person represented with respect to any matter arising under the Uniform Probate Code, whether or not a judicial proceeding concerning the estate is pending.
C. In making decisions, a representative may consider the general benefit accruing to the living members of the person's family.
History:
1978 Comp., § 45-1-403.5, enacted by Laws 2016, ch. 69, § 708.
ANNOTATIONS
Effective dates.
— Laws 2016, ch. 69, § 727A made Laws 2016, ch. 69, §§ 701 through 723 effective July 1, 2016.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 1 - Uniform Probate Code › Part 4 - NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS › Section 45-1-404 - Real property outside county of administration; notice required; contents; effect.

A. If real property is included in an estate and is situate in a county other than the county wherein the estate is being administered, the personal representative shall, or any other interested person may, record with the county clerk of the other county a notice of administration setting forth:
(1) the name of the decedent;
(2) the title and docket number of the administration proceedings;
(3) a description of the type of administration;
(4) the court wherein instituted;
(5) the name, address and title of the personal representative; and
(6) a complete description of the real property situate in such county.
B. The recorded notice shall constitute full and complete notice of all proceedings had, and to be had, in the administration proceedings, and it shall not be necessary to file or record in the county where the real property is located any other instruments or records relating to the administration of the estate.
History:
1953 Comp., § 32A-1-404, enacted by Laws 1975, ch. 257, § 1-404.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
58 Am. Jur. 2d Notice § 24; 61A Am. Jur. 2d Pleading §§ 20, 21, 68.
Duty and liability of executor with respect to locating and noticing legatees, devisees or heirs, 10 A.L.R.3d 547.
71 C.J.S. Pleading § 32; 95 C.J.S. Wills §§ 370, 464.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2 - Intestate Succession and Wills › Part 1 - INTESTATE SUCCESSION › Subpart 1 - General Provisions › Section 45-2-101 - Intestate estate.

A. Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as prescribed in the Uniform Probate Code, except as modified by the decedent's will.
B. A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his intestate share.
History:
1953 Comp., § 32A-2-101, enacted by Laws 1975, ch. 257, § 2-101; repealed and reenacted by Laws 1993, ch. 174, § 5.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Laws official comment to 2-101 UPC.
Repeals and reenactments.
— Laws 1993, ch. 174, § 5 repealed former 45-2-101 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-101, and enacted a new section, effective July 1, 1993.
Cross references.
— For unavailable wills,
see
45-3-402B NMSA 1978.
For late offered will,
see
45-3-410, 45-3-412A NMSA 1978.
For final orders conclusive in formal testacy proceedings,
see
45-3-410, 45-3-412 NMSA 1978.
For partial intestacy,
see
45-3-411 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
23 Am. Jur. 2d Descent and Distribution §§ 1, 59; 79 Am. Jur. 2d Wills § 2.
Eligibility of illegitimate child for survivor's benefits under Social Security Act, pursuant to § 216(h)(2)(A) of act (42 USCS § 416(h)(2)(A)), where state intestacy law denying inheritance right, or application of that state law to § 216(h)(2)(A), may violate child's right to equal protection of laws, 116 A.L.R. Fed. 121.
Constitutionality of statute repealing, modifying or changing course of descent and distribution of property, 103 A.L.R. 223.
Family settlement of intestate estate, 29 A.L.R.3d 174.
Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration, 2 A.L.R.4th 1315.
95 C.J.S. Wills § 615.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2 - Intestate Succession and Wills › Part 1 - INTESTATE SUCCESSION › Subpart 1 - General Provisions › Section 45-2-104 - Requirement of survival by one hundred twenty hours; individual in gestation.

A. For purposes of intestate succession and allowances, and except as otherwise provided in Subsection B of this section, the following rules apply:
(1) an individual born before a decedent's death who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual born before the decedent's death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period; and
(2) an individual in gestation at a decedent's death is deemed to be living at the decedent's death if the individual lives one hundred twenty hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent's death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period.
B. This section does not apply if its application would cause the estate to pass to the state under Section 45-2-105 NMSA 1978.
History:
1953 Comp., § 32A-2-104, enacted by Laws 1975, ch. 257, § 2-104; 1976 (S.S.), ch. 37, § 1; repealed and reenacted by Laws 1993, ch. 174, § 7; 2011, ch. 124, § 11.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Laws official comment to 2-104 UPC.
Repeals and reenactments.
— Laws 1993, ch. 174, § 7 repealed former 45-2-104 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-104, and enacted a new section, effective July 1, 1993.
Cross references.
— For definition of "survive",
see
45-1-201 NMSA 1978.
For evidence standard,
see
45-2-702 NMSA 1978.
The 2011 amendment,
effective January 1, 2012, provided that an individual in gestation at decedent's death is deemed to be living at decedent's death if the individual lives one hundred twenty hours after birth.
Law reviews.
— For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
23 Am. Jur. 2d Descent and Distribution § 110.
Decree directing distribution of estate to person who is dead, 25 A.L.R. 1563.
Time interval contemplated by provision of will or of statute of descent and distribution with reference to death of two persons simultaneously or approximately at same time, 173 A.L.R. 1254.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2 - Intestate Succession and Wills › Part 1 - INTESTATE SUCCESSION › Subpart 1 - General Provisions › Section 45-2-105 - No taker.

If there is no taker under the provisions of Chapter 45, Article 2 NMSA 1978, the intestate estate passes to the state.
History:
1953 Comp., § 32A-2-105, enacted by Laws 1975, ch. 257, § 2-105; 1993, ch. 174, § 8.
ANNOTATIONS
Compiler's notes.
— This section is similar to former 29-1-21, 1953 Comp.
Cross references.
— For escheat proceeds as constituting part of school fund,
see
N.M. Const., art. XII, § 4.
The 1993 amendment,
effective July 1, 1993, substituted "Chapter 45, Article 2 NMSA 1978" for "Sections 2-101 through 2-902 of the Uniform Probate Code".
Title passes automatically to state where escheat proceedings not required.
— In absence of statutes requiring escheat proceedings, judicial or otherwise, passage of title by escheat to the state does not depend upon any affirmative action by the state, and passes automatically and immediately to the state upon the death of the person without heirs.
Schmitz v. State Tax Comm'n
, 1951-NMSC-048, 55 N.M. 320, 232 P.2d 986.
Due or delinquent taxes extinguished when title passed by escheat.
— At the instant title passes by escheat to the state, any taxes then due or delinquent are abated and extinguished.
Schmitz v. State Tax Comm'n
, 1951-NMSC-048, 55 N.M. 320, 232 P.2d 986.
Proceeds from escheat to go to school fund.
— The net proceeds of property that come to the state by escheat go into the current school fund. 1937 Op. Att'y Gen. No. 37-1795.
Proceeds from escheat contrasted with unclaimed funds.
— If a decedent dies intestate and no heirs can be found, the remaining estate funds escheat to the state and should be sent to the state treasurer to be deposited into the current school fund as required by N.M. Const., Art. XII, § 4. However, if a decedent dies with a will, the remaining estate funds should ultimately be sent to the taxation and revenue department, through the state treasurer, to be placed in the unclaimed property fund, administered by the taxation and revenue department for use by the state until such property is claimed by a lawful owner.
Disposition of remaining estate funds under the Probate Code
(10/8/19), Att'y Gen. Adv. Ltr. 2019-03.
Law reviews.
— For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
27A Am. Jur. 2d Escheat §§ 1 et seq., 18, 24, 27.
Necessity of judicial proceeding to vest title to real property in state by escheat, 23 A.L.R. 1237, 79 A.L.R. 1364.
Necessity and sufficiency of notice to support title by escheat to decedent's estate, 48 A.L.R. 1342.
Constitutionality, construction and application of statutes relating to disposition of old bank deposits, 151 A.L.R. 836.
Inheritance from illegitimate, 48 A.L.R.2d 759.
Escheat of personal property of intestate domiciled or resident in another state, 50 A.L.R.2d 1375.
Uniform Disposition of Unclaimed Property Act, 98 A.L.R.2d 304.
30A C.J.S. Escheat §§ 3 to 7.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2 - Intestate Succession and Wills › Part 1 - INTESTATE SUCCESSION › Subpart 1 - General Provisions › Section 45-2-106 - Representation.

A. As used in this section:
(1) "deceased descendant", "deceased parent" or "deceased grandparent" means a descendant, parent or grandparent who either predeceased the decedent or is deemed to have predeceased the decedent pursuant to Section 45-2-104 NMSA 1978; and
(2) "surviving descendant" means a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent pursuant to Section 45-2-104 NMSA 1978.
B. If, pursuant to Section 45-2-103 NMSA 1978, a decedent's intestate estate or a part thereof passes "by representation" to the decedent's descendants, the estate or part thereof is divided into as many equal shares as there are:
(1) surviving descendants in the generation nearest to the decedent that contains one or more surviving descendants; and
(2) deceased descendants in the same generation who left surviving descendants, if any.
Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
C. If, pursuant to Section 45-2-103 NMSA 1978, a decedent's intestate estate or a part thereof passes "by representation" to the descendants of the decedent's deceased parents or either of them or to the descendants of the decedent's deceased paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are:
(1) surviving descendants in the generation nearest the deceased parents or either of them or the deceased grandparents or either of them that contains one or more surviving descendants; and
(2) deceased descendants in the same generation who left surviving descendants, if any.
Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
History:
1953 Comp., § 32A-2-106, enacted by Laws 1975, ch. 257, § 2-106; repealed and reenacted by Laws 1993, ch. 174, § 9.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Laws official comment to 2-106 UPC.
Repeals and reenactments.
— Laws 1993, ch. 174, § 9 repealed former 45-2-106 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-106, and enacted a new section, effective July 1, 1993.
Law reviews.
— For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
23 Am. Jur. 2d Descent and Distribution §§ 55, 62, 67, 72 to 77.
26A C.J.S. Descent and Distribution §§ 18, 23, 40, 42.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2 - Intestate Succession and Wills › Part 1 - INTESTATE SUCCESSION › Subpart 1 - General Provisions › Section 45-2-107 - Kindred of half blood.

Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
History:
1953 Comp., § 32A-2-107, enacted by Laws 1975, ch. 257, § 2-107.
ANNOTATIONS
Law reviews.
— For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
23 Am. Jur. 2d Descent and Distribution § 54.
Deceased spouse as ancestor of surviving spouse within statute providing that kindred of the half blood inherit equally with those of the whole blood, unless the inheritance comes to the intestate by descent, devise or gift of some one of his ancestors, 110 A.L.R. 1014.
Descent and distribution: rights of inheritance as between kindred of whole and half blood, 47 A.L.R.4th 561.
26A C.J.S. Descent and Distribution §§ 21, 25, 36, 41.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2 - Intestate Succession and Wills › Part 1 - INTESTATE SUCCESSION › Subpart 1 - General Provisions › Section 45-2-108 - Repealed.

History:
1953 Comp., § 32A-2-108, enacted by Laws 1975, ch. 257, § 2-108; repealed and reenacted by Laws 1993, ch. 174, § 10; repealed by Laws 2011, ch. 124, § 97.
ANNOTATIONS
Repeals.
— Laws 2011, ch. 124, § 97 repealed 45-2-108 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-108, relating to after-born heirs, effective January 1, 2012. For provisions of former section,
see
the 2010 NMSA 1978 on
NMOneSource.com
.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2 - Intestate Succession and Wills › Part 1 - INTESTATE SUCCESSION › Subpart 1 - General Provisions › Section 45-2-109 - Advancements.

A. If an individual dies intestate as to all or a portion of his estate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if:
(1) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement; or
(2) the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.
B. For purpose of Subsection A of this section, property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent's death, whichever first occurs.
C. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate, unless the decedent's contemporaneous writing provides otherwise.
History:
1953 Comp., § 32A-2-109, enacted by Laws 1975, ch. 257, § 2-109; 1976 (S.S.), ch. 37, § 2; repealed and reenacted by Laws 1993, ch. 174, § 11.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Laws official comment to 2-109 UPC.
Repeals and reenactments.
— Laws 1993, ch. 174, § 11 repealed former 45-2-109 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-109, relating to the meaning of child and related terms, and enacted a new section, effective July 1, 1993.
Cross references.
— For definition of "heirs",
see
45-1-201A NMSA 1978.
For judicial determination,
see
45-3-409 to 45-3-412 NMSA 1978.
"Advancement" construed.
— An advancement is a perfect and irrevocable gift, not required by law, made by a parent during his lifetime to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of the donor's estate that the donee would be entitled to on the death of the donor intestate.
In re Estate of Martinez
, 1981-NMCA-081, 96 N.M. 619, 633 P.2d 727.
Gift to children presumed advancement.
— There is a presumption that a parent's substantial gift to one of his children is intended as an advancement.
In re Estate of Martinez
, 1981-NMCA-081, 96 N.M. 619, 633 P.2d 727.
Law reviews.
— For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).
For annual survey of New Mexico law relating to estates and trusts, see 13 N.M.L. Rev. 395 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
3 Am. Jur. 2d Advancements §§ 11 to 15.
Widow's statutory distributive share as affected by advancements to others, or by provisions of will that legatees shall take certain indebtedness owing to testator as part of their share, 76 A.L.R. 1420.
Check as evidencing advancement, 74 A.L.R.5th 491.
26A C.J.S. Descent and Distribution §§ 91 to 115.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2 - Intestate Succession and Wills › Part 1 - INTESTATE SUCCESSION › Subpart 1 - General Provisions › Section 45-2-110 - Debts to decedent.

A debt owed to a decedent is not charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's descendants.
History:
1953 Comp., § 32A-2-110, enacted by Laws 1975, ch. 257, § 2-110; repealed and reenacted by Laws 1993, ch. 174, § 12.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Laws official comment to 2-110 UPC.
Repeals and reenactments.
— Laws 1993, ch. 174, § 12 repealed former 45-2-110 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-110, relating to advancements, and enacted a new section, effective July 1, 1993.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2 - Intestate Succession and Wills › Part 1 - INTESTATE SUCCESSION › Subpart 1 - General Provisions › Section 45-2-112 - Dower and curtesy abolished.

The estates of dower and curtesy are abolished.
History:
1953 Comp., § 32A-2-113, enacted by Laws 1975, ch. 257, § 2-113; repealed and reenacted by Laws 1993, ch. 174, § 14.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Laws official comment to 2-112 UPC.
Repeals and reenactments.
— Laws 1993, ch. 174, § 14 repealed former 45-2-112 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-112, relating to aliens, and enacted a new section, effective July 1, 1993.
Compiler's notes.
— The language of this section is identical to that of former 29-1-23, 1953 Comp.
Law reviews.
— For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
25 Am. Jur. 2d Dower and Curtesy §§ 2, 4, 7.
Constitutionality of statutes in relation to dower, 10 A.L.R.3d 212.
26A C.J.S. Descent and Distribution §§ 6, 48, 60.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2 - Intestate Succession and Wills › Part 1 - INTESTATE SUCCESSION › Subpart 1 - General Provisions › Section 45-2-113 - Individuals related to decedent through two lines.

An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share.
History:
1953 Comp., § 32A-2-113, enacted by Laws 1975, ch. 257, § 2-113; repealed and reenacted by Laws 1993, ch. 174, § 15.
ANNOTATIONS
Repeals and reenactments.
— Laws 1993, ch. 174, § 15 repealed former 45-2-113 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-113, relating to the abolition of curtesy and dower, and enacted a new section, effective July 1, 1993.