How Do I Get Appointed Representative of an Estate in New Mexico?

Full question:

My husband passed away in Sept. 2010. There is no estate, we had mortgage protector that paid our house off partially. I want to do a wrongful death suit against the hospital because he was badly neglected but I am told by them that I can't get his records unless I am legally his personal representative as in his estate. How do I become a personal representative?

• Category: Wills and Estates
• Subcategory: Executors and Administrators
• Date: 04/07/2025
• State: New Mexico

Answer:

When a person dies, their assets are distributed in the probate process. If a person dies with a will, a petition to probate the will is filed with the probate court in the county where the deceased resided at the time of death, asking for letters testamentary to be issued, giving the executor authority to handle the estate affairs. If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. The court will issue letters of administration, also called letters testamentary, to the administrator, giving the authority to handle the affairs of the deceased. An heirship affidavit may also be used to conduct estate affairs when a small estate is involved. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process.

If small estate procedures may be used, an affidavit may be used to distribute the assets of the deceased in a summary process. In Virginia, small estate procedures may be used if the estate isn't worth mor than $50,000. If the estate doesn't qualify as a small estate, it may be necessary to have the estate probated and receive letters testamentary. The court will issue testamentary letters to the executor or administrator, giving the authority to handle the affairs of the deceased.

The duty of settling and distributing the estate of a decedent (one who has died) is assigned to personal representatives of the decedent. A Personal Representative may be an executor (male or female) or executrix (female), or administrator (male or female) or administratrix (female). An executor or executrix is the person named in a will to administer the estate. An administrator or administratrix is a person appointed by the court to administer the estate of someone who died without a will.

Please see the following NM statutes:

45-3-601. Qualification.

Prior to receiving letters, a personal representative shall qualify by filing with the appointing probate court or district court any required bond and a statement of acceptance of the duties of the office.

45-3-603. Bond requirements.

A. No bond is required of a personal representative appointed in informal proceedings, except:

(1) upon the appointment of a special administrator;

(2) when a personal representative is appointed to administer an estate under a will containing an express requirement of bond; or

(3) when bond is required under Section 3-605.

B. Bond may be required by court order at the time of appointment of a personal representative appointed in any formal proceeding, except that bond is not required of a personal representative appointed in formal proceedings if the will relieves the personal representative of bond, unless bond has been requested by an interested person in accordance with Section 3-605 and the district court so orders. Bond required by any will may be dispensed with in formal proceedings upon determination by the district court that it is not necessary.

C. No bond is required of any personal representative who, pursuant to statute, is exempt or has deposited cash or collateral with an agency of New Mexico to secure performance of his duties.