Although most people are familiar with the term “probate” and possess at least a rudimentary understanding of this concept, they may not have a clear understanding of the function and process of probate. Our Albuquerque Probate Attorneys have provided an overview of the basic role and functions of the probate process. The probate process is a method of transferring a person’s assets after death which is supervised by a court. The property that is subject to the probate process includes those assets owned in the decedent’s own name but does not include certain assets that pass based on title, joint ownership or beneficiary designation. Probate may either be based on a will or on the law of intestate succession when a decedent dies without a will or living trust.

For assets to be distributed under a will, a legal action must be initiated so that a judge can “probate the will.” In broad terms, this requires the party who initiates the probate process to establish that the will meets all of the legal formalities to be enforced. The steps involved in carrying out the probate process will usually be handled by a personal representative. The basic steps in the probate process include:

• Gathering the assets of the estate
• Satisfying outstanding financial obligations
• Accumulating income and dividends owed to the estate
• Resolving any outstanding disputes
• Distribution of the remaining net assets to heirs

While probating a will can be either a contested or uncontested proceeding, contested proceedings usually arise when a potential beneficiary under the will believes that he or she has not been treated fairly and should receive a more substantial portion of the estate. These challenges typically are based on a lack of proper execution of formalities, undue influence exerted over the decedent or lack of mental capacity when the will was drafted. Sometimes challenges to a will can be preempted by using a “no contest clause” in a will or discussing one’s intentions with heirs ahead of time so that they understand your justifications for how you distribute your estate.

Although many people use the probate process, much of the focus of estate planning involves avoiding probate. Probate offers the advantage of court oversight of the administration of your estate but has drawbacks like probate expenses, delays in distributing your assets and public disclosure of personal financial information.

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The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.

If you have questions about a will, the probate process, or how to avoid probate in New Mexico, our Albuquerque Probate Attorneys at Life Leaf Legal Group, PC offer a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your specific situation. Call us today to schedule your free consultation at (505) 856-3591 to learn about your rights and options.