FORMAL TESTACY AND APPOINTMENT PROCEEDINGS

NMSA 1978 ch. 45, art. 3, pt. 4

in effect

NMSA 1978, § 45-3-401 Formal testacy proceedings; nature; when commenced

45-3-401. Formal testacy proceedings; nature; when commenced A. A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing: (1) a petition as described in Subsection A of Section 3-402 [45-3-402 NMSA 1978] in which he requests that the court, after notice and hearing, enter an order probating a will; or (2) a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application; or (3) a petition in accordance with Subsection C of Section 3-402 [45-3-402 NMSA 1978] for an order that the decedent died intestate. B. A petition may request formal probate of a will without regard to whether or not the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative. C. During the pendency of a formal testacy proceeding, the probate court shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent. D. Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously-appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding. If a petitioner requests the appointment of a different personal representative in a formal proceeding, the previously-appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate, or unless the district court orders otherwise. 1953 Comp., § 32A-3-401, enacted by Laws 1975, ch. 257, § 3-401.

NMSA 1978, § 45-3-402 Formal testacy or appointment proceedings; petition; contents

45-3-402. Formal testacy or appointment proceedings; petition; contents A. Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the district court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will: (1) contains the original will, unless excused under the provisions of Subsection B of this section; (2) requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs; and (3) contains the statements required for informal applications as stated in Subsection A of Section 3-301 [45-3-301 NMSA 1978] and the statements required by Paragraphs (1) through (3) of Subsection B of Section 3-301 [45-3-301 NMSA 1978]. B. If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will and why it is unavailable. C. A petition for adjudication of intestacy and appointment of a personal representative must request a judicial finding and order that the decedent left no will and, determining the heirs, contain the statements required by Subsections A and D of Section 3-301 [45-3-301 NMSA 1978] and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of a personal representative, in which case, the statements required by Paragraph (2) of Subsection D of Section 3-301 [45-3-301 NMSA 1978] may be omitted. 1953 Comp., § 32A-3-402, enacted by Laws 1975, ch. 257, § 3-402.

NMSA 1978, § 45-3-403 Formal testacy proceeding; notice of hearing on petition

45-3-403. Formal testacy proceeding; notice of hearing on petition A. Upon commencement of a formal testacy proceeding, the district court shall fix a time and place of hearing. Notice shall be given in the manner prescribed by Section 1-401 [45-1-401 NMSA 1978] by the petitioner to the persons enumerated in this section and to any additional person who has filed a demand for notice under Section 3-204 [45-3-204 NMSA 1978] of the [Uniform] Probate Code. B. Notice shall be given to the following persons: the surviving spouse, children and other heirs of the decedent (who would have taken had the decedent died intestate); the devisees and personal representatives named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere; and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the petitioner shall give notice by publication to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated. C. If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on the petition shall be sent by registered or certified mail to the alleged decedent at his last known address. The district court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods: (1) by inserting in one or more suitable periodicals, a notice requesting information from any person having knowledge of the where-abouts of the alleged decedent; (2) by notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent; and (3) by engaging the services of an investigator. The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration. 1953 Comp., § 32A-3-403, enacted by Laws 1975, ch. 257, § 3-403.

NMSA 1978, § 45-3-404 Formal testacy proceedings; written objections to probate

45-3-404. Formal testacy proceedings; written objections to probate In a formal testacy proceeding, any interested person who opposes the probate of a will for any reason shall state in his pleadings his objections to probate of the will. 1953 Comp., § 32A-3-404, enacted by Laws 1975, ch. 257, § 3-404.

NMSA 1978, § 45-3-405 Formal testacy proceedings; uncontested cases; hearings and proof

45-3-405. Formal testacy proceedings; uncontested cases; hearings and proof A. If a petition in a formal testacy proceeding is unopposed, the district court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of Section 3-409 [45-3-409 NMSA 1978] have been met, or conduct a hearing in open court and require proof of the matters necessary to support the order requested. B. If evidence concerning execution of a will which is not self-proved is necessary in uncontested cases, the affidavit or testimony of at least one of the attesting witnesses is required if he is within New Mexico, competent and able to testify. Otherwise, due execution of a will may be proved by other evidence. C. If the will is self-proved in an uncontested case, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed, subject to rebuttal without the testimony of any witness, upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit. 1953 Comp., § 32A-3-405, enacted by Laws 1975, ch. 257, § 3-405.

NMSA 1978, § 45-3-406 Formal testacy proceedings; contested cases; testimony of attesting witnesses

45-3-406. Formal testacy proceedings; contested cases; testimony of attesting witnesses A. If evidence concerning execution of a will which is not self-proved is necessary in contested cases, the testimony of at least one of the attesting witnesses is required if he is within New Mexico, competent and able to testify. Otherwise, due execution of a will may be proved by other evidence. B. If the will is self-proved in a contested case, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed, subject to rebuttal without the testimony of any witness, upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit. 1953 Comp., § 32A-3-406, enacted by Laws 1975, ch. 257, § 3-406.

NMSA 1978, § 45-3-407 Formal testacy proceedings; burdens in contested cases

45-3-407. Formal testacy proceedings; burdens in contested cases In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate. If a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate. 1953 Comp., § 32A-3-407, enacted by Laws 1975, ch. 257, § 3-407.

NMSA 1978, § 45-3-408 Formal testacy proceedings; will construction; effect of final order in another jurisdiction

45-3-408. Formal testacy proceedings; will construction; effect of final order in another jurisdiction A final order of a court of another state determining testacy, the validity or construction of a will, made in a proceeding involving notice to and an opportunity for contest by all interested persons, must be accepted as determinative by the courts of New Mexico if it includes, or is based upon, a finding that the decedent was domiciled at his death in the state where the order was made. 1953 Comp., § 32A-3-408, enacted by Laws 1975, ch. 257, § 3-408.

NMSA 1978, § 45-3-409 Formal testacy proceedings; order; foreign will

45-3-409. Formal testacy proceedings; order; foreign will A. After the time required for any notice has expired, upon proof of notice, and after any hearing that may be necessary, if the district court finds that the testator is dead, venue is proper and that the proceeding was commenced within the limitation prescribed by Section 3-108 [45-3-108 NMSA 1978], it shall determine the decedent's domicile at death, his heirs and his state of testacy. Any will found to be valid and unrevoked shall be formally probated. Termination of any previous informal appointment of a personal representative, which may be appropriate in view of the relief requested and findings, is governed by Section 3-612 [45-3-612 NMSA 1978]. The petition shall be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. B. A will from a foreign jurisdiction which does not provide for probate of a will after death, may be proved for probate in New Mexico by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become operative under the law of the foreign jurisdiction. 1953 Comp., § 32A-3-409, enacted by Laws 1975, ch. 257, § 3-409.

NMSA 1978, § 45-3-410 Formal testacy proceedings; probate of more than one instrument

45-3-410. Formal testacy proceedings; probate of more than one instrument If two or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. If more than one instrument is probated, the order shall indicate what provisions control in respect to the nomination of a personal representative, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument. After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of Section 3-412 [45-3-412 NMSA 1978]. 1953 Comp., § 32A-3-410, enacted by Laws 1975, ch. 257, § 3-410.

NMSA 1978, § 45-3-411 Formal testacy proceedings; partial intestacy

45-3-411. Formal testacy proceedings; partial intestacy If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent's estate is or may be partially intestate, the district court shall enter an order to that effect. 1953 Comp., § 32A-3-411, enacted by Laws 1975, ch. 257, § 3-411.

NMSA 1978, § 45-3-412 Formal testacy proceedings; effect of order; vacation

45-3-412. Formal testacy proceedings; effect of order; vacation A. Subject to appeal and subject to vacation as provided in this section and in Section 45-3-413 NMSA 1978, a formal testacy order under Sections 45-3-409 through 45-3-411 NMSA 1978, including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will and to the determination of heirs, except that: (1) the court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will were unaware of: (a) its existence at the time of the earlier proceeding; or (b) the earlier proceeding and were given no notice thereof except by publication; (2) if intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that the persons were: (a) unaware of their relationship to the decedent; (b) were unaware of his death; or (c) were given no notice of any proceeding concerning his estate except by publication; (3) a petition for vacation under either Paragraph (1) or (2) of this subsection shall be filed prior to the earliest of the following time limits: (a) if a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate or, if the estate is closed by statement, six months after the filing of the closing statement; (b) whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by Section 45-3-108 NMSA 1978 when it is no longer possible to initiate an original proceeding to probate a will of the decedent; or (c) twelve months after the entry of the order sought to be vacated; (4) the order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances, by the order of probate of the later-offered will or the order redetermining heirs; and (5) the finding of the fact of death is conclusive as to the alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at his last known address and the court finds that a search under Subsection C of Section 45-3-403 NMSA 1978 was made. B. If the alleged decedent is not dead, even if notice was sent and search was made, he may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is in their hands or the value of distributions received by them to the extent that any recovery from distributees is equitable in view of all of the circumstances. 1953 Comp., § 32A-3-412, enacted by Laws 1975, ch. 257, § 3-412; 1995, ch. 210, § 35.

NMSA 1978, § 45-3-413 Formal testacy proceedings; vacation of order for other cause

45-3-413. Formal testacy proceedings; vacation of order for other cause For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal as provided by the Rules Governing Appeals to the Supreme Court and Court of Appeals and Original Proceedings in the Supreme Court [12-101 NMRA]. 1953 Comp., § 32A-3-413, enacted by Laws 1975, ch. 257, § 3-413.

NMSA 1978, § 45-3-414 Formal proceedings concerning appointment of personal representative

45-3-414. Formal proceedings concerning appointment of personal representative A. A formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as personal representative, or of one who previously has been appointed personal representative in informal proceedings, if an issue concerning the testacy of the decedent is or may be involved, is governed by Section 3-402 [45-3-402 NMSA 1978], as well as by this section. In other cases, the petition shall contain or adopt the statements required by Subsection A of Section 3-301 [45-3-301 NMSA 1978] and describe the question relating to priority or qualification of the personal representative which is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter. If the proceeding is commenced after appointment, the previously-appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the district court orders otherwise. B. After notice to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously-appointed personal representative, and any person having or claiming priority for appointment as personal representative, the district court shall determine who is entitled to appointment under Section 3-203 [45-3-203 NMSA 1978], make a proper appointment and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under Section 3-611 [45-3-611 NMSA 1978]. 1953 Comp., § 32A-3-414, enacted by Laws 1975, ch. 257, § 3-414.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18546/index.doFetched: 10/20/2026