New Mexico Administrative Code › Title 3 - TAXATION › Chapter 8 - ESTATE TAX › Part 2 - PERSONAL REPRESENTATIVE › Section 3.8.2.8 - WHO IS PERSONAL REPRESENTATIVE

Current through Register Vol. 35, No. 13, July 16, 2024
A. The term "personal representative"
				generally means the executor or administrator of the decedent's estate as a
				whole, such as one appointed by a court having jurisdiction of the
				estate.
B. If there is no such
				person appointed, qualified and acting, then every person in possession of any
				property of the decedent can be considered a "personal representative" for
				estate tax purposes. Consequently, in the absence of a duly qualified and
				acting executor, administrator, fiduciary or custodian, persons possessing
				property of the decedent are responsible for filing the estate tax return
				(Section
				7-7-5 NMSA 1978) and
				paying the estate tax (Section
				7-7-6 NMSA
				1978). Such persons are also subject to the provisions of Section
				7-7-11
				NMSA 1978 and Subsection A of
				7-7-12
				NMSA 1978. It is not anticipated that every person in possession of any
				property of the decedent will file the estate tax return but that one among
				that group will take the responsibility.
C. "Possession" of property means actual or
				constructive possession and denotes physical dominion or control over the
				property coupled with an intent to exercise control and to exclude others from
				control. Persons who may have possession of a decedent's property include, but
				are not limited to, lessees or bailees, joint or co-owners (including an owner
				or owners in joint tenancy, tenancy in common, and community property),
				partners or joint venturers, trustees or other fiduciaries, and transferees or
				distributees of the estate. The term "possession" does not, however, signify
				mere physical custody of property, when such custody is for a limited purpose
				or when there is no intent to exercise control or to exclude others from
				control. Persons who do not have possession of a decedent's property (absent
				special circumstances) include mortgagees or pledgees, stockbrokers or stock
				transfer agents, bank and other depositories of checking or saving accounts,
				safe-deposit companies, and life insurance companies.
D. Example 1: D, a New Mexico domiciliary,
				and J own a joint bank account in B bank. D dies and no executor or
				administrator is appointed for D's estate. J is a personal representative; B is
				not.
E. Example 2: D, a New Mexico
				domiciliary, and S own as community property land which is mortgaged to L
				savings and loan association. D carries life insurance with I insurance
				company; S is named as beneficiary. D dies and no executor or administrator is
				appointed for the estate. S collects the proceeds, pays off the loan and
				receives a release of mortgage from L. S is a personal representative (as
				co-owner, as recipient of the insurance proceeds and release of the mortgage);
				L and I are not.
F. Example 3: D, a
				New Mexico domiciliary, has an investment management agency account with C
				bank, under which C holds D's securities (registered in the name of its
				nominee) and invests and re- invests them in its discretion. The assets in this
				account are pledged to C to secure a loan to D. C places an order with broker B
				to sell certain stocks and to buy other stocks and then D dies. B executes the
				orders, forwards the sold securities to T1 transfer
				agent, collects the proceeds and sends them to C, and has the purchased
				securities registered by T2 transfer agent in the
				name of C's nominee. No executor or administrator is appointed for D's estate,
				all of which is inherited by X. X is a personal representative, as is C (as
				bailee, not as pledgee). Neither B, T1 nor
				T2 is a personal representative.
G. Example 4: D, a New Mexico domiciliary, is
				employed by E, a New Mexico employer. D dies and E pays to S, D's surviving
				spouse, $1,000 wages E owed to D. Thereafter, an executor or administrator
				becomes appointed, qualified and acting for D's estate. E is not a personal
				representative.