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New Mexico
Probate Judges
Manual
2013 Edition
by former Judge Merri Rudd
with Lori Frank
This publication has been provided for use by the New Mexico judiciary with public
funds administered by the Judicial Education Center. It is the property of the
court. No person may remove it from the premises of the court except for judges
during their term of service and judicial personnel on official court business.
New Mexico Probate Judges Manual
© 2003, 2005, 2006, 2007, 2011, 2013 by Merri Rudd and the Rozier E. Sanchez Judicial
Education Center of New Mexico. All rights reserved.
New Mexico Judicial Education Center
Institute of Public Law
University of New Mexico School of Law
MSC11 6060
1 University of New Mexico
Albuquerque, NM 87131-0001
Phone: (505) 277-5006
Fax: (505) 277-7064
http://jec.unm.edu/
This Manual is intended for educational and informational purposes only. It is not intended to
provide legal advice. Readers are responsible for consulting the statutes, rules and cases pertinent
to their issue or proceeding. Readers should keep in mind that laws and procedures may change.
1
Chapter 1
Introduction to Probate
1
2
Chapter 2
Wills
2
3
Chapter 3
Personal Representatives and Special Administrators
3
4
Chapter 4
Probate Procedures
4
5
Chapter 5
Closing the Estate
5
6
Chapter 6
Records, Fees and Reporting
6
7
Chapter 7
How to Transfer a Case to District Court
7
8
Chapter 8
Judicial Conduct
8
9
Chapter 9
Real Property as Part of Estate
9
10
Chapter 10
Miscellaneous Topics
10
11
Chapter 11
Weddings Performed by Probate Judges
11
12
Chapter 12
Glossary
12
13
Chapter 13
Code of Judicial Conduct
13
14
Chapter 14
Selected New Mexico Statutes
14
15
Chapter 15
Resources
15
i
NEW MEXICO
PROBATE JUDGES MANUAL
TABLE OF CONTENTS
Acknowledgements
1. Introduction to Probate
1.1. Overview
1.2. Workplace Requirements
1.2.1. County‘s Obligation to Provide Office and Supplies
1.2.2. Location and Hours of Business
1.2.3. Probate Judge Salary and Term Limits
1.2.4. Probate Court Staff
1.3. Jurisdiction and Venue
1.3.1. Probate Court Jurisdiction
1.3.2. Exclusive District Court Jurisdiction
1.3.3. Domicile
1.3.4. Venue
1.3.5. Examples
1.4. When is a Probate Required?
1.4.1. Probate Estate, Defined
1.4.2. Gross Estate, Defined
1.4.3. Various Ways to Title Property
1.5. Intestate Succession
1.6. Medical Records and Unclaimed Property Act
2. Wills
2.1. Requirements for a Valid Will
2.1.1. Who May Make a Will?
2.1.2. What is Sound Mind?
2.1.3. Witness Requirements
2.1.4. Writing and Signature Requirements
2.2. Sections Contained in Wills
2.3. Other Kinds of Wills
2.3.1. Holographic Wills
2.3.2. Joint Wills
2.3.3. Mutual Wills
2.3.4. Wills with a Contract Not to Revoke
2.3.5. Pourover Wills
2.3.6. Living Wills
2.4. Locating the Will
ii
2.4.1. Safe Deposit Box
2.4.2. Placing a Will on Deposit with the District Court
2.4.3. Do Not Record a Will with the County Clerk‘s Office
2.4.4. Leaving Original Will with Attorney Who Prepared It
2.5. Codicils to Wills
2.6. Judge‘s Review of Original Will and Codicils, If Any
2.7. How to Revoke a Will
2.8. Tangible Personal Property List
3. Personal Representatives and Special Administrators
3.1. Personal Representatives
3.1.1. Who Has Priority to Serve?
3.1.2. What If Person With Highest Priority Does Not Want to Serve?
3.1.3. When Consents are Required
3.1.4. Co-Personal Representatives
3.1.5. Successor Personal Representatives
3.1.6. Resignation of Personal Representative
3.1.7. Removal of Personal Representative
3.1.8. Bond Required of Personal Representative
3.1.9. Limited Appointment of Personal Representative
3.1.10. Duties of Personal Representative
3.2. Special Administrators
3.2.1. Sample Order for Informal Appointment of Special Administrator
3.2.2. Sample Letters of Special Administration
3.2.3. Sample Order for Informal Appointment of Special Administrator, Medical
Records Only
3.2.4. Sample Letters of Special Administration, Medical Records Only
4. Probate Procedures
4.1. Docketing Cases 4.1.1. To Docket or Not Docket a Case? 4.1.2. Just Because a Case is Docketed, Must the Judge Sign the Order? 4.1.3. Documents Filed with Court & Redaction of Sensitive Information 4.1.4. Docketing Checklist 4.1.5. Sequestered Cases
4.2. Probate Court Forms 4.2.1. Pro Se (Do-It-Yourself) Probate Forms 4.2.2. Other Probate Forms
4.3. Proof of Death 4.3.1. How Does a Judge Know the Decedent has Died? 4.3.2. Death Certificates
4.4. Format and Handling of Court Pleadings 4.5. Initial Probate Application
4.5.1. Required Elements
iii
4.5.2. Common Errors on Initial Application 4.6. Initial Probate Order
4.6.1. Testate Orders, Form 4B-104 4.6.2. Intestate Orders, Form 4B-103 4.6.3. Other Orders Signed by the Judge
4.7. How to Issue Letters 4.7.1. How to Issue Updated Certified Letters 4.7.2. Sample Letters Testamentary – Original in Court File 4.7.3. Sample Letters Testamentary – Returned to Personal Rep or Attorney
4.8. Probate Case Checklist – Things to Watch For 4.9. Alternative Probate Application Forms
4.9.1. Sample Probate Application Form, Intestate (Commonly Used by Attorneys) 4.9.2. Sample Probate Application Form, Testate (Commonly Used by Attorneys)
4.10. Checklist of Informal Probate and Appointment Pleadings
5. Closing the Estate
5.1. Options for Closing the Estate in Probate Court
5.1.1. Verified Statement
5.1.2. Summary Administration
5.2. Certificate of Full Administration from the Court
5.3. Formal Closing
5.4. Estate Never Closed
5.5. Newly Discovered Property
5.6. Reopening Old Cases for Mistake or Inadvertence
6. Records, Fees and Reporting
6.1. Docket Sheets and Index
6.2. Court Costs and Fees
6.3. Retention and Public Record Requirements for Storing Cases
6.3.1. Storage of Old or Closed Files
6.3.2. Microfilm
6.3.3. Securing Files
6.3.4. Confidentiality v. Public Record
6.3.5. Accessibility to the Public – Inspection of Public Records Act
6.3.6. Court Rule re: Public Inspection of Court Records
6.3.7. Fees Allowed for Copies under Inspection of Public Records Act
6.3.8. Other Public Records
6.3.9. Other Record Retention
6.4. Reports to District Court
7. How to Transfer a Case to District Court
7.1. Reasons for Transferring a Case
7.2. Methods of Transfer
iv
7.2.1. Transfer Initiated by Probate Court Order
7.2.2. Transfer Initiated by District Court Order
7.3. Sample Orders and Forms
7.3.1. Sample District Court Order to Probate Court to Transfer Case
7.3.2. Sample Form of Transmittal Memorandum for Transfer to District Court
7.3.3. Sample Order for Permanent Transfer to District Court
7.3.4. Sample Order of Recusal and Transfer to District Court
7.3.5. Sample Order for Transfer to District Court with Remand to Probate Court
after Resolution of Dispute
7.3.6. Sample Order to Decline Jurisdiction ―for any reason‖
7.3.7. Sample Order of Recusal for ―ex parte‖ Communications
8. Judicial Conduct
8.1. Overview of Ethical Requirements 8.1.1. Code of Judicial Conduct Canons 8.1.2. Code of Judicial Conduct ―Golden Rules‖ 8.1.3. General Do‘s and Don‘ts
8.2. Communications by Judge with Parties 8.2.1. Ex Parte Communications by Judge and Staff 8.2.2. Staff Contact with Self-Represented Applicants 8.2.3. Obtaining Advice about a Case
8.3. Behavior at Court 8.4. Behavior Outside of Court 8.5. Community Activity for Probate Judges
8.5.1. Exemptions for Probate Judges 8.5.2. Examples
8.6. Political Activity for Probate Judges 8.6.1. Probate Judges as Judicial Candidates 8.6.2. Exemptions for Probate Judges 8.6.3. Examples
8.7. Disciplinary Action Against Probate Judges 8.8. Unauthorized Practice of Law
8.8.1. Providing Forms v. Filling Out Forms 8.8.2. Paralegals 8.8.3. Unauthorized Practice of Law (UPL) Statutes 8.8.4. Examples of Unauthorized Practice of Law Related to Probate
8.8.5. Pro Hac Vice (Non-New Mexico Attorneys)
8.9. Safety Valves for Probate Judges
9. Real Property as Part of Estate
9.1. Overview of Estates with Real Property
9.2. Probate Opened in Your County, with Real Property Located in New Mexico but
Outside of Your County
9.3. Real Property Located Outside of New Mexico
v
9.3.1. Simultaneous (Dual) Probates in Two Different States
9.3.2. Ancillary Proceedings
9.4. Proof of Authority
9.5. Manufactured (Mobile) Homes as Part of Estate
9.6. Flowchart: Decedent Domiciled in New Mexico with Real Property as Part of the
Estate
9.7. Flowchart: Out-of-State Decedent
9.8. Table: Differences Between Proof of Authority and Ancillary or Dual Proceeding
10. Miscellaneous Topics
10.1. Bonds 10.2. Agreements Among Successors 10.3. Disclaimer Statutes 10.4. Family/Personal Property Allowances 10.5. Omitted Spouse and Children 10.6. Collection of Decedent‘s Final Paycheck 10.7. Creditors‘ Claims and Demands for Notice
10.7.1. Estate Recovery Law in New Mexico 10.8. Trusts 10.9. Cremation Law 10.10. Wrongful Death Claims 10.11. Notarial Acts and Oaths 10.12. Missing Heirs and Unclaimed Property
10.12.1. Federal Letter Forwarding Services 10.13. Powers of Attorney 10.14. Authenticated v. Certified Copies 10.15. Small Estate Affidavits
10.15.1. Sample Affidavit Form 10.16. Transfer of Homestead Affidavits
10.16.1. Sample Affidavit Form 10.17. Out-of-State Personal Representative Shortcut
11. Weddings Performed by Probate Judges
11.1. Who May Perform Weddings 11.2. Marriage License Required 11.3. New Limits on Fees for Performing Weddings 11.4. Ceremony 11.5. Certain Marriages Restricted or Prohibited
12. Glossary
13. Code of Judicial Conduct
14. Selected New Mexico Statutes
vi
14.1. Statutes Concerning Probate Courts 14.2. Statutes from the Uniform Probate Code 14.3. Statutes Concerning Safe Deposit Boxes
15. Resources
15.1. Probate Resource Materials 15.2. Additional State and Federal Government Resources
vii
Acknowledgements
I originally wrote this manual with the help of my capable and versatile Court Administrator
Lori Frank. We hope the manual will help both new and experienced probate judges to
understand basic probate process. In interpreting New Mexico‘s Probate Code and the role of
probate judges, there are occasional differences of opinion that we have tried to note.
The following people provided invaluable input, review and assistance in updating the 2013
edition of the manual:
Stephanie Dennis, New Mexico Unclaimed Property Division
Honorable Kevin Duncan, Curry County Probate Judge
Frank Fischer, Santa Fe County Probate Court Clerk
Lori Frank, Bernalillo County Probate Court Administrator
Tony Garcia, Bernalillo County Probate Court Legal Assistant
Pam Lambert, Esq., Director, Judicial Education Center
Honorable Willow Misty Parks, Bernalillo County Probate Judge
Edward J. Roibal, Esq.
Honorable Alice Salcido, Doña Ana County Probate Judge
Richard B. Spinello, Esq., General Counsel, State Bar of New Mexico
Honorable Jim Summers, Torrance County Probate Judge
Honorable James J. Wechsler, New Mexico Court of Appeals
Merri Rudd, Esq.
Bernalillo County Probate Judge
2001-2010
viii
2013 Notable Updates
The 2013 edition of the Probate Judges Manual includes numerous minor and major changes.
The following list highlights most major changes. Judges are responsible for informing
themselves about all changes in the probate code and the manual that affect their courts.
Chapter 1
Section 1.1, end note new link for free public access to all New Mexico statutes
Section 1.2.3 new section re: probate judge salary and term limits
Section 1.3.2 updated list of district court jurisdiction; probate court lack jurisdiction
over guardianships and conservatorship cases
Section 1.4.2 revised estate tax figures
Section 1.4.3 revised definition of ―tenants in common‖ and ―joint tenants‖
Section 1.5 updated Section 45-2-103, heirs to intestate estate
Section 1.6 new website for state‘s unclaimed property information
Chapter 2
Section 2.1.1 new law re: who can make will
Section 2.1.4 updated requirements for valid will
Section 2.2 updated list of contents of will and Practical Tip re: attestation clause
Section 2.3.1 updated holographic will section
Section 2.3.4 added specific language re: Section 45-2-514
Section 2.4.1 added paragraph at end re: tangible property in bank safe deposit box
Section 2.5 added paragraph re: multiple codicils
Section 2.7 new law re: revocation of wills
Section 2.8 updated section re: tangible personal property list
Chapter 3
Section 3.1 expanded Practical Tip
Section 3.1.1 new Practical Tip and info re: those without highest priority, updated
Important Notes re: Oldham case, and revised and/or added Examples 1, 4,
10 and 11, 12
Section 3.1.4 added paragraph re: court‘s order appointing co-personal representatives
Section 3.1.5 added to opening paragraph re: successor personal representatives
Section 3.1.10 added new intro paragraph re: duties of personal representative and new
Practical Tip re: notice of inventory
Section 3.2 added new 3rd
paragraph re: not using special administration to avoid
obtaining required consents
Chapter 4
Section 4.1.1 added new 2nd
paragraph re: substantive errors and other updates re:
docketing cases
Section 4.1.2 new paragraph re: form orders if case not ready for judge to sign order of
appointment
ix
Section 4.1.3 new section re: correspondence as part of court file and information about
redaction of sensitive information on documents submitted to court
Section 4.1.4 updated Docketing Checklist
Section 4.2.1 new material throughout section and updated links for do-it-yourself forms
Section 4.3.2 new material re: funeral home duties and death certificate confidentiality;
updated Certificate Acknowledging Receipt and Review of Death
Certificate to reflect current law
Section 4.5.1 updated 7. re: who are the heirs, definition of ―half blood,‖ and new Code
of Judicial Conduct Rule 21-209C.; updated 8. to include new section
―What if the Will is Invalid?‖; updated 11. re: demands for notice; new
section under 12. re: ―More than Three Years Since Decedent‘s Death—
Section 45-3-108‖
Section 4.6.2 expanded Practical Tip and added material re: declining to appoint the
personal representative
Section 4.6.3 new section re: other orders signed by judge
Section 4.7 revised entire section into two different sections re: issuing Letters
Section 4.8 new section—Probate Checklist for judge
Chapter 5
Section 5.3 added that probate judges lack jurisdiction over formal closings
Section 5.4 updated section re: never closing estate
Section 5.5 added new examples for newly discovered property
Chapter 6
Section 6.3.1 multiple updates re: storage of old or closed files
Section 6.3.2 new information, including new web addresses, re: record retention and
archives
Section 6.3.4 revised entire section re: confidentiality v. public record
Section 6.3.5 new section re: laws about Inspection of Public Records Act (IPRA)
Section 6.3.6 new section re: court rule 1-079 re: court log for cases inspected by public
and sample log of requests
Section 6.3.7 updated section re: fees allowed to charge for copies under IPRA
Chapter 7
Section 7.2.2 updated portions of section re: transfer initiated by district court
Section 7.3.7 added new sample Order of Recusal for ―ex parte‖ Communication
Chapter 8
Entire chapter rewritten due to updated Code of Judicial Conduct, new unauthorized practice of
law laws, and pro hace vice rules for attorneys from other states. Judges should read entire
chapter!
Chapter 9
Section 9.1 updated information about joint tenancy and personal representative‘s
deed
x
Section 9.3 updated information and Practical Tip about real property located outside
of New Mexico
Section 9.3.1 updated information about two probates in two different states
Section 9.4 updated information about Proofs of Authority
Section 9.5 new link to MVD form for vehicle and mobile home transfers
Section 9.7 updated flowchart to reflect New Mexico‘s new definition of
―authentication‖
Chapter 10
Section 10.2 updated information about agreements among successors
Section 10.3 updated information about new disclaimer statutes
Section 10.4 added new Practical tip re: recipients of allowances not having to file a
claim for the allowances and paragraph re: Bell case
Section 10.5 added paragraph re: Bell case and Practical Tip re: disputes
Section 10.7 updated/expanded entire section
Section 10.7.1 new section re: Estate Recovery Law in New Mexico
Section 10.8 new intro paragraph re: trusts
Section 10.9 new information re: updated cremation laws
Section 10.11 updated information re: notary laws and requirement of $10,000 bond
Section 10.12 revised entire section re: unclaimed property process
Section 10.12.1 new websites and contact information re: letter forwarding services
Section 10.13 new final paragraph with current cites to power of attorney laws
Section 10.14 updated to reflect New Mexico‘s revised definition of ―authentication‖
Section 10.15 updated information and affidavit form based on revised New Mexico law
for affidavits of successors in interest
Section 10.16 updated information and affidavit form based on revised New Mexico law
for transfer of homestead affidavits
Section 10.17 added new section re: out-of-state personal representative shortcut
Chapter 11
Section 11.3 added new restrictions on fees for performing weddings
Chapter 12
Updated and/or added new definitions of ―affidavit of successor in interest,‖ ―authenticated,‖
―codicil,‖ ―descendant,‖ ―disclaimer,‖ ―HIPAA,‖ ―holographic will,‖ ―interested person,‖
―issue,‖ ―power of attorney,‖ ―probate code,‖ ―property,‖ ―sign,‖ ―successors,‖ ―successor
personal representative,‖ ―testator,‖ and ―will.‖
Chapter 13
Included current copy of annotated Code of Judicial Conduct.
Chapter 14
Included current copies of selected Uniform Probate Code provisions and other laws.
Chapter 15
Updated websites and added new resources.
1-1
CHAPTER 1
Introduction to Probate
This chapter covers:
Workplace requirements, including an office, supplies, location, hours and staff.
Jurisdiction and venue, including probate court jurisdiction, exclusive district court
jurisdiction, domicile and venue.
When a probate is required, including definitions of probate and gross estates, different
ways to title property, medical and other information.
Intestate succession, including identifying the heirs and what happens when someone
dies without a valid will.
1.1 Overview
Probate is a court proceeding to pass a deceased person‘s (decedent’s) property (also called
―assets‖ or ―estate‖) to the heirs or devisees. The court appoints a personal representative who
has the legal authority to act on behalf of the estate in passing the decedent‘s property.
Heirs are the people who would inherit the estate if there were no will. Devisees are the
individuals or organizations listed in a will to receive the property of a decedent‘s estate. A
person can be both an heir and a devisee.
A decedent may own real property (houses, land, ranches, timber and mineral interests still
attached to the ground, etc.) or personal property. Personal property includes items such as bank
accounts, stock accounts, retirement accounts, insurance policies, annuities, and royalties. These
are items of intangible personal property. Furniture, guns, jewelry, artwork, vehicles, and other
household items are tangible personal property.
Estates with both real property and personal property may be filed in the probate courts.
A decedent‘s assets do not necessarily require a probate as discussed later in this chapter.
Intestate means dying without a valid will. Testate means dying with a valid will. Both intestate
and testate estates may be filed in the probate court if three years or less have elapsed since a
decedent‘s death. If more than three years have elapsed, only intestate estates may be filed in the
probate courts.
1-2
A large part of the probate judge‘s job is to make sure the pleadings (paperwork submitted to the
court) are complete and accurate under New Mexico law. To do so, probate judges must be
familiar with topics such as jurisdiction, venue, domicile, the how-to's of handling pleadings, and
other legal issues. Since many probate judges are not attorneys, this basic training manual will
give judges an overview of common issues that may come before them. Judges are always free,
however, to call a district court judge, another probate judge, attorney, or other expert if they
encounter a case, question, or situation that they do not know the answer to or feel uncomfortable
with.
Judges will find references to ―Section 45-__-__‖ throughout this manual. These refer to
Sections of New Mexico Statutes Annotated (NMSA) 1978. Chapter 45, Pamphlet 67 is the
Uniform Probate Code that governs probates. This manual omits the ―NMSA 1978‖ part of the
statute cite for ease of reading. All probate judges should have the entire Probate Code, 2008
Replacement Pamphlet (223 pages) and current supplement. Periodic supplements to the
Uniform Probate Code are available as they are published. For copies of the Uniform Probate
Code, supplements, or other statutes, contact the New Mexico Compilation Commission, PO
Box 15549, Santa Fe NM 87592-5549, (505) 827-4821. The Compilation Commission‘s physical
address is 4355 Center Place, Santa Fe, NM 87507. The website contains more information:
www.nmcompcomm.us.
Free public access to all of New Mexico‘s statutes and rules is available online at:
http://www.nmonesource.com/nmpublic/gateway.dll/?f=templates&fn=default.htm Click in
upper left corner ―+ Statutes, Rules, Const.‖ to drop down a menu.
1.2 Workplace Requirements
Probate judges should be aware of the following statutory requirements concerning their
workplace.
1.2.1 County’s Obligation to Provide Office and Supplies
Section 34-7-6 states that the county commissioners of each county in this state shall provide a
suitable office for the accommodation of the probate judge of the county, and shall furnish all
stationery and such other things as may be necessary for the prompt discharge of the duties of
said judges.
1.2.2 Location and Hours of Business
Probate judges of this state are strictly required to hold their courts in the county seat of their
counties, and the probate clerks shall also have their office in the county seat of the county at all
times. Section 34-7-4. The probate courts of the state shall be in session and open at such times
as are needed for the transaction of any business matters that may properly come before the
courts under the laws of the state and upon notice given as required under the laws of the state.
Section 34-7-8. Probate judges who do not have a full-time staff should set and post regular
office hours when they will be available. Judges should be at the court during the hours posted.
1-3
How many hours a judge is in the office each week depends on the workload and other factors.
Assuming a case includes all required paperwork, consents and other items, most judges review
and act on cases docketed at their courts within one week of submission.
Whenever a probate judge is absent from the county where he or she was elected, is
incapacitated, or unable to attend to his or her duties for any reason, any district judge of said
county may do any and all things that could otherwise be done by the probate judge, without the
necessity of having the matters or proceedings transferred from the docket of the probate court to
the district court. The fact of said absence or incapacity shall be recited in every order of the
district judge entered in accordance with this act. Section 34-7-11.
1.2.3 Probate Judge Salary and Term Limits
The salaries of probate judges are set by the legislature and vary depending on county size. As of
December 31, 2012, salaries range from $28,820 for Class A counties to $8,795 for first class
counties under twenty-seven million dollars ($27,000,000) valuation to $3,505 for Class H
counties. See Sections 4-44-4 through 4-44-8 and 4-44-14 for details.
Probate judges and other county officers, such as treasurer, assessor, clerk, county commissioner,
and sheriff are term-limited. Article X, Section 2D of the New Mexico Constitution states, ―All
county officers, after having served two consecutive four-year terms, shall be ineligible to hold
any county office for two years thereafter.‖
1.2.4 Probate Court Staff
The county clerk is the ex-officio clerk of the probate court (see New Mexico Constitution
Article VI, Section 22). The county clerk, however, may, with the consent of the probate judge,
appoint a deputy clerk of the probate court, who, when duly appointed and qualified, has full
power and is authorized to perform all the duties of the clerk of the probate court. Section 34-7-
22.
A deputy clerk may be a staff member of the county clerk‘s office, or, in larger counties, may be
a staff person hired specifically to assist the probate judge. All deputy clerks must take an oath of
office which shall be recorded with the records of the probate court. Section 34-7-23. A deputy
clerk of the probate court shall not receive any additional salary or pay of any kind for the
performance of his duties, and his compensation shall be taken out from the pay and the fees of
the clerk as allowed by law and as agreed upon between the deputy and the clerk who appoints
him. Section 34-7-25.
1.3 Jurisdiction and Venue
The Uniform Probate Code covers four types of probate cases:
Informal probate (a will is submitted).
Informal appointment (no will is submitted).
1-4
Formal testacy (a will is submitted).
Formal appointment (no will is submitted).
―Jurisdiction‖ is the authority for a court to act on a certain matter. Probate courts are courts of
"limited jurisdiction," and only have authority to act over informal probate/appointment
proceedings.
1.3.1 Probate Court Jurisdiction
The probate court may:
Accept informal probate and appointment cases (Sections 45-3-301 through 311) and
may:
o Admit wills to informal probate; and
o Informally appoint a personal representative.
Appoint a special administrator in an informal proceeding (Section 45-3-614).
Review the reasonableness of fees charged by the personal representative or anyone
employed by the personal representative, including attorneys (Section 45-3-721 does not
appear to limit this power only to district courts, but since probate judges lack the power
to hold evidentiary hearings, it should happen rarely in probate court).
Appoint a successor personal representative in an informal proceeding, when the original
personal representative dies or resigns (Sections 45-3-609, -610).
Note: The district court may also do the above things. The probate court has what is known as
“concurrent jurisdiction” with the district court to preside over informal probate and
appointment matters. This means that a person can file an informal probate and/or appointment
in either probate court or district court (Section 45-1-302.1).
Practical Tip: If the probate judge is out of town, incapacitated, or otherwise away from the court, any
district court judge from that county can sign orders on the judge‘s behalf. ―The fact of such
absence or incapacity shall be recited in every order of the district judge...‖ Section 34-7-11.
1.3.2 Exclusive District Court Jurisdiction
Only the district court has jurisdiction over:
Formal probate and appointment proceedings, including formal closings.
Supervised administrations.
Estates of missing and protected persons.
Protection of incapacitated persons and minors (including guardianships and
conservatorships).
Survivorship and related accounts and similar property interests.
Disclaimer of interests in property.
1-5
Apportionment of taxes on estates.
Governing instruments except wills. "Governing instrument" includes a deed, trust,
insurance or annuity policy, account with POD designation, security registered in
beneficiary form (TOD), transfer on death (TOD) deed, pension, profit-sharing,
retirement or similar benefit plan. Section 45-1-201(A)(20).
Trusts (but see discussion of ―pourover wills‖ in Chapter 2).
Only the district court can:
Appoint someone without the highest priority to serve as personal representative (Section
45-3-203(E)). However, if all people with equal priority have signed written consents,
this gives highest priority to the person upon whom all have agreed. See Chapter 3 for a
detailed discussion of this topic.
Determine the validity of a contested will; this requires a formal probate proceeding.
Consider admitting a copy of a will (Section 45-3-402(A)(1), (B)); this requires a formal
probate proceeding.
Preside over a trial in a contested probate matter (Sections 45-3-406, 407).
Determine title to and value of real or personal property between the estate and any
interested person, including strangers to the estate with an adverse claim. The district
court has full power to make orders, judgments and decrees and to take all other action
necessary and proper to administer justice in matters that come before it (Section 45-1-
302(B)).
Hear a ―petition for allowance‖ of a disputed creditor‘s claim (Section 45-3-806(A)(C)).
Remove a personal representative for cause (Section 45-3-611).
In instances where conflicts of interest may be present, approve the sale or encumbrance
of property to the personal representative, his spouse, agent, or attorney (Section 45-3-
713(A)(2)).
Open a probate case more than three years after death when a will exists (Section 45-3-
108(A)(4)(5)).
Enter an order restraining a personal representative from acting (Section 45-3-607).
Make a specific determination of heirs (Section 45-1-302(A)(1).
Appoint a personal representative in a limited capacity.
Preside over guardianship and/or conservatorship cases (Sections 45-1-302(A)(3) and 45-
5-101(B)).
Appoint a ―guardian ad litem‖ for a minor child who is the heir or devisee of an estate
(Sections 45-1-302(A)(3) and 45-5-405.1).
Practical Tip: Probate judges do not have jurisdiction to appoint a guardian or conservator for incapacitated
persons or minors and should not sign any orders of appointment. The UPC clearly defines
the ―court‖ with jurisdiction over these matters as the district court or the children's or family
division of the district court where such jurisdiction is conferred by the Children's Code, see
Section 45-5-101(B). If a probate judge is asked to appoint a guardian or conservator, he or
she should direct the parties to transfer the case to the district court.
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1.3.3 Domicile
Domicile is important in determining venue, i.e., is the case being filed in the correct court?
Venue is discussed below. ―Domicile‖ is a person's usual and permanent place of abode.
Questions that help determine a person‘s domicile include:
Where does the person consider his or her permanent place of abode?
If they do not currently reside there, do they intend to return?
Where is the person registered to vote?
Is this their permanent address?
Where is their vehicle registered?
From what state is their driver‘s license issued?
Is this the place they intend to return to, even if they currently reside elsewhere?
From which state do they file their income taxes?
Ways for the probate judge to check domicile include:
Does the will say decedent is domiciled in your county (it may not if the will was written
long ago or when the testator lived in another state)?
Does death certificate say decedent lived in your county?
Do initial application and death certificate match re: domicile?
Practical Tip: If there is a conflict between what the application and death certificate indicate about the
decedent‘s domicile, contact the applicant or attorney and ask them to explain any
discrepancies. Discrepancies may result from the person having lived in a nursing home,
been cared for by a family member in their home, died while on vacation, etc. The judge has
discretion to decide if the decedent‘s domicile is in the county where the case has been filed.
If the case is clearly filed in the wrong court, it should be transferred to the correct court (or
not accepted in the first place).
1.3.4 Venue
―Venue‖ means the place where the case should be filed. Which county‘s probate court or which
district court does one use when someone dies?
Section 45-3-201 governs venue. Venue for the first informal testacy or appointment proceedings
after a decedent's death is:
(1) the county in New Mexico where the decedent was domiciled at the time of his death;
or
(2) if the decedent was not domiciled in New Mexico, in any county in New Mexico
where property of the decedent was located at the time of his death. (―Property‖ can
be interpreted to mean real or personal property.)
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1.3.5 Examples
Example 1: X dies domiciled in Bernalillo County. All of his property is located in Bernalillo
County. Where should the Application for Appointment of Personal Representative be filed?
Answer: According to Section 45-3-201(A)(1), the personal representative must open the case in
Bernalillo County – either in the Bernalillo County Probate Court or the Second Judicial District
Court.
Example 2: X dies domiciled in Bernalillo County. He owns real property in Taos County. No
other property requires a probate. Where should the Application for Appointment of Personal
Representative be filed?
Answer: According to Section 45-3-201(A)(1), the personal representative must open the case in
Bernalillo County Probate Court or Second Judicial District Court, and then record a Notice of
Administration, Section 45-1-404, in Taos County Clerk‘s office. Some attorneys or applicants
will argue that the personal representative can open the case directly in Taos County, but case
law and the statute on venue do not support this!
Example 3: X dies domiciled in Durango, Colorado. All of X‘s property passes outside of
probate, except for property he owns in Socorro County. Where should the Application for
Appointment of Personal Representative be filed?
Answer: According to Section 45-3-201(A)(2), the personal representative opens the case in the
county where the property is located. Therefore, the case may be opened in the Socorro County
Probate Court or the Seventh Judicial District Court.
Example 4: X, who is domiciled in California, dies without a will. X‘s estate requires a
California probate, which has already been opened there. But X also owns a piece of real
property in Albuquerque, New Mexico. What should the personal representative do?
Answer: X‘s Californian personal representative has three options. 1) Pursuant to Section 45-4-
204, the personal representative can file a ―Proof of Authority‖ in Bernalillo County‘s Probate
Court or Second Judicial District Court, including a) authenticated copies of the California
appointment, b) any official bond that has been given; and c) a statement of the domiciliary
foreign personal representative‘s address. 2) The personal representative could open an informal
proceeding, but would need to modify the language in the application to indicate that another
probate had already been opened. See Sections 45-3-301(A)(4), 45-3-301(B)(1), 45-3-303(D)(E),
45-3-308(C). 3) The personal representative could initiate a formal ancillary proceeding in the
district court, pursuant to Section 45-4-207.
1.4 When is a Probate Required?
1.4.1 Probate Estate, Defined
The decedent‘s ―probate estate‖ is the part of a deceased person's estate that is governed by the
provisions of the Uniform Probate Code. The probate estate requires a court probate proceeding
to pass that part of the estate to the decedent‘s heirs or devisees. The probate estate includes
decedent‘s property, both real and personal, that is titled in decedent‘s sole name or as tenants
in common (defined below). It does not generally include property held in joint tenancy (also
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defined below), insurance policies (unless the estate, rather than an individual, is named as a
beneficiary), payable on death accounts, transfer on death accounts, trusts, etc.
1.4.2 Gross Estate, Defined
The decedent‘s ―gross estate‖ is the total value of ALL of decedent‘s property, no matter how
titled, for purposes of calculating decedent‘s estate tax liability, if any. The gross estate may
include a home, ranch, other real property, bank accounts, investment accounts, IRAs, annuities,
retirement accounts, insurance policy proceeds, household goods, collectibles, and more. In 2012
$5,120,000 of a decedent‘s estate is exempt from estate tax. This figure decreases to $5,000,000
in 2013.
1.4.3 Various Ways to Title Property
Title to property is one of the things that controls whether or not a probate is necessary. There
are many ways to title property:
Sole name of a person (only decedent‘s name appears on bank account, house, or other
assets).
Tenants in common (each tenant owns his or her own portion as a separate, distinct
interest in the property that cannot be transferred or legally destroyed by the other co-
tenant(s). One tenant in common passes his/her share to his/her heirs or devisees at death.
At decedent‘s death, decedent‘s tenant in common share requires a court probate
proceeding. The decedent‘s heirs or devisees will then own the property with the
surviving co-tenant(s).
The above two forms of property ownership require a court proceeding to pass ownership to a
decedent‘s heirs or devisees. They are considered part of the decedent‘s probate estate. They are
also part of the decedent‘s gross estate.
Other ways to title property include:
Joint tenants with right of survivorship (at death of one joint tenant, property passes to
surviving joint tenant(s) without a probate or court proceeding). Joint tenancy title may
appear as ―joint tenants,‖ ―joint tenants with right of survivorship,‖ or ―jtwros.‖ Any of
these is a permissible designation of a joint tenancy for deeds, financial accounts or other
documents. In cases involving a joint tenancy deed to real property, the decedent joint
tenant‘s death certificate should be recorded in the county clerk‘s office in the county
where the property is located.
Payable on death (POD) accounts (name a beneficiary for bank accounts or U.S.
savings bonds; beneficiary automatically receives the property after the owner‘s death
without a probate, see Sections 45-6-201 through 227).
Other assets with named beneficiaries, such as life insurance, annuities, individual
retirement accounts (IRAs) (owner names in writing a beneficiary and at owner's death,
the property passes automatically to the named beneficiary without a probate, unless the
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beneficiary has predeceased the owner). However, if the owner has named ― my estate‖
as the beneficiary, a probate will probably be necessary,
Transfer on death (TOD) accounts (name a beneficiary to receive stocks, bonds, and
other investment securities; beneficiary automatically receives the property after the
owner‘s death without a probate, see Sections 45-6-301 through 311).
Transfer on death deeds (TODD) for real property (must be prepared and recorded
properly before the owner‘s death to pass title to the real property automatically to the
TODD beneficiaries after the owner‘s death without a probate, see Section 45-6-401).
Trusts (trustor can create a written trust during his/her lifetime, transfer all property into
the name of the trustee of the trust, and the trust property passes automatically to named
trust beneficiaries upon trustor‘s death without a probate).
Life estates (a person retains an ownership interest during his/her lifetime, then upon
his/her death, the property passes automatically to designated remainder beneficiaries
without a probate; life estates usually occur with real property and require a special deed
to create this interest).
The above seven forms of property ownership usually do not require a court probate
proceeding to pass ownership to a decedent’s heirs or devisees. Therefore, they are not
considered part of the decedent’s probate estate, but are part of decedent’s gross estate.
1.5 Intestate Succession
Intestate means dying without a valid will. Wills are discussed in Chapter 2. The laws about
intestate succession appear in Sections 45-2-101 through 45-2-114. Chapter 14 of the manual
includes Sections 45-2-101 through 45-2-107 and Section 45-2-114.
If a decedent was married at the time of his/her death and died without a valid will, the
distribution of a decedent‘s assets differ, depending on whether the decedent‘s property was
separate or community. If an intestate decedent owned community property at death and had a
spouse, then the surviving spouse receives all of the decedent‘s community property. Section 45-
2-102(B). See also Section 45-2-807. If an intestate decedent had no spouse, then the decedent‘s
heirs as set out in Section 45-2-103 would receive the decedent‘s property.
If an intestate decedent owned separate property at death and had only a spouse, but no children,
then the surviving spouse receives all of the separate property in the intestate estate. Section 45-
2-102(A)(1). If the intestate decedent owned separate property at death and had a spouse and
children, then the surviving spouse receives one-fourth of the separate property in the intestate
estate and the children receive the other three-fourths. Sections 45-2-102(A)(2), Section 45-2-
103(A). If the decedent owned separate property at death and had no spouse or children, then the
decedent‘s heirs as set out in Section 45-2-103 would receive the separate property.
Practical Tips: Determining the shares of recipients of an estate is outside the scope of a probate judge‘s
authority. Yet it is important for judges to understand the applicable laws. Pro se applicants
often ask for help, and judges must know what they are and are not allowed to say.
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Also, remember that not all assets of an estate require a court proceeding. Titles to
property, discussed above, determine whether or not a court proceeding is necessary. This
principle applies to both testate and intestate estates.
Section 45-2-103 lists the priority of heirs to inherit an intestate estate. This statute also provides
guidance about which heirs must be listed in the initial application:
If decedent is married, decedent‘s spouse is an heir.
Decedent‘s children, by representation, include
o all of decedent‘s biological children, if any; and
o children adopted by decedent, if any.
If one or more of decedent‘s children have died, all children of the deceased child or
children are also heirs of the decedent's estate.
If the decedent has no surviving spouse or children, decedent‘s parents are the heirs,
if both survive, or the surviving parent if only one survives.
If the decedent has no surviving spouse, children, or parents, then decedent‘s brothers
and sisters (called ―descendants of the decedent's parents‖ in Section 45-2-103), by
representation, are the heirs; (if one or more of decedent‘s siblings has died, the
children of the deceased sibling(s) are also heirs of the estate).
If the decedent has no surviving children, parents or siblings, the decedent's
grandparents are the heirs--if the grandparents are deceased, their children (decedent's
aunts and uncles), are the heirs of the estate. Section 45-2-103A(4) of the law states,
―If decedent has no surviving descendant, parent or descendant of a parent, but the
decedent is survived on both the paternal and maternal sides by one or more
grandparents or descendants of grandparents: (a) half to the decedent's paternal
grandparents equally if both survive, to the surviving paternal grandparent if only one
survives, or to the descendants of the decedent's paternal grandparents or either of
them if both are deceased, the descendants taking by representation; and (b) half to
the decedent's maternal grandparents equally if both survive, to the surviving
maternal grandparent if only one survives, or to the descendants of the decedent's
maternal grandparents or either of them if both are deceased, the descendants taking
by representation…‖
If decedent has no surviving descendant, parent, descendant of a parent, or
descendants of grandparents, but the decedent has: (1) one deceased spouse who has
one or more descendants who survive the decedent, the estate or part thereof passes to
that spouse's descendants by representation; or (2) more than one deceased spouse
who has one or more descendants who survive the decedent, an equal share of the
estate or part thereof passes to each set of descendants by representation. "Deceased
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spouse" means an individual to whom the decedent was married at the individual's
death, and does not include a spouse who was divorced from, or treated pursuant to
Section 45-2-802 or Section 45-2-804 NMSA 1978 as divorced from, the decedent at
the time of the decedent's death. See Section 45-2-103B and 45-2-103C. Until 2012
the Uniform Probate Code has never allowed decedent‘s stepchildren to inherit by
operation of law. In reality it will be impossible for a judge to know whether
decedent‘s deceased spouse had any children who may be entitled to inherit. If this
issue requires a factual determination, transfer the case to the district court for a
formal proceeding.
If no relatives or stepchildren of the decedent can be found, an intestate estate ―escheats‖ to the
state school fund. Section 45-2-105.
Practical Tip: The intestate provisions of the law contain new, extremely complex provisions relating to
genetic parents, adoptive parents, children conceived by assisted reproduction, and children
born to surrogate parents. These new laws are set out in Sections 45-2-115 through 45-2-122,
which are not included in Chapter 14 of the manual. If the probate judge encounters a case
with any of these issues, he or she should transfer the case to the district court for a formal
proceeding.
1.6 Medical Records and Unclaimed Property Act
Due to privacy concerns under the federal HIPAA law (Health Insurance Portability and
Accountability Act of 1996), courts are seeing many probates opened solely for the purpose of
gaining access to medical records or other information about the decedent. This often happens
even though the person died years ago. Once the court appoints a personal representative, he/she
should have the same authority to access decedent‘s records as the decedent would have had.
If a personal representative opens a case under the Uniform Probate Code to gather information,
he or she is still responsible for all duties of a personal representative, such as giving notices to
heirs, devisees, and creditors, preparing inventories and accountings, etc.
In the alternative, a Special Administrator may be appointed for the sole purpose of obtaining
medical records. This procedure might be appropriate if medical records are required for a
lawsuit or other purpose, but all necessary consents to the appointment of a personal
representative cannot be obtained or someone with equal priority for appointment is missing. A
Special Administrator appointed in an informal proceeding does not have the authority to
distribute assets of the estate. Special administrators are discussed in Chapter 3 of the manual.
The Unclaimed Property Division of New Mexico‘s Taxation and Revenue Department has
various procedures to claim assets on behalf of a deceased person who has rights to unclaimed
property. Chapter 10 contains more information about unclaimed property. The state‘s website at
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http://www.tax.newmexico.gov/Individuals/Unclaimed-Property/Pages/Home.aspx also has
additional information.
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CHAPTER 2
Wills
This chapter covers:
Requirements for a valid will, including who may make a will, the definition of sound
mind, witness requirements, and writing and signature requirements.
Sections contained in wills.
Other kinds of wills, such as holographic, joint, mutual and pourover wills.
Locating the will in various places where it may have been left or recorded.
Codicils to wills.
Judge‘s review of the original will and codicils.
How to revoke a will.
Tangible personal property list.
2.1 Requirements for a Valid Will
2.1.1 Who May Make a Will?
An individual eighteen years of age or older who is of sound mind or an emancipated minor who
is of sound mind may make a will. Section 45-2-501. An emancipated minor is a person sixteen
years of age or older who: (1) has entered into a valid marriage, whether or not the marriage was
terminated by dissolution; (2) is a member of the active or reserve components of the army,
navy, air force, marine corps or coast guard of the United States who is on active duty or a
member of the national guard who is on activated status; or (3) has received a declaration of
emancipation pursuant to the Emancipation of Minors Act. Section 45-1-201(A)(14).
2.1.2 What is Sound Mind?
Testamentary capacity (being of sound mind) means someone knows:
The objects of one‘s bounty (who one‘s immediate heirs are);
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The nature of one‘s bounty (what property one owns); and
That one is making a will.
A “lucid moment” is all that New Mexico case law requires that if, at the moment the testator
signed the will, he or she knows the above three things, then the testator meets the requirements
of testamentary capacity, even if he or she does not remember making the will the next day.
Someone under a court-appointed conservatorship may still have capacity to make a will! See
Matter of the Estate of Lucero, 118 N.M. 636 (Ct. App. 1994).
2.1.3 Witness Requirements
The witness requirements for a valid will in New Mexico are:
Two ―competent‖ individuals. Section 45-2-505(A).
No age requirement, although in practice attorneys who prepare wills use witnesses
age 18 or older; But see Matter of the Estate of Kelly, 99 N.M. 482 (Ct. App. 1983),
where a 13-year-old witnessed a will, and this was not part of the challenge to the
will.
In New Mexico, interested persons (those who inherit under the will) may serve as
witnesses. Section 45-2-505(B). If the will was executed in another state, the judge
may need to check the requirements for that state.
The notary may also serve as a witness to the execution of the will. However, almost
all wills that are notarized contain the signatures of two witnesses and a separate
notary. But see Martinez v. Martinez, 99 N.M. 809 (Ct.App.1983).
2.1.4 Writing and Signature Requirements
Wills must be (Section 45-2-502):
In writing.
Signed by testator (or signed by someone else in the testator‘s conscious presence and
by the testator‘s direction—this provision is used for testators with physical, not
mental disabilities).
Signed by two witnesses (testator and two witnesses, who must all be in each other‘s
presence and watch each other sign).
The above requirements are the only ones necessary for a valid will. Notarization is not
required, although wills prepared by lawyers are often notarized. Some people who prepare
their own wills believe that the notary‘s signature makes the will valid and that no additional
witnesses are required. They are incorrect; a will made in New Mexico must contain the
signature of the testator and two witnesses.
Note: Wills that are not signed in the presence of two witnesses (or are not witnessed at all) are
invalid if created in New Mexico. However, New Mexico has a case that says if a will only has
one witness‘s signature, but is notarized, then the notary counts as the second witness, and the
will is valid. Martinez v. Martinez, 99 N.M. 809 (Ct. App. 1983).
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Practical Tip: Probate judges have been asked whether an agent appointed under a power of attorney can
sign a will on behalf of a testator. Remember that a testator must be ―of sound mind‖ when
signing a will. Only if the testator is of sound mind and able to direct the agent to sign on
his or her behalf and in his or her conscious presence could an agent sign a will on behalf of
the testator. A court-appointed conservator by law may not sign a will on behalf of an
incapacitated person. Section 45-5-402.1(B)(3).
2.2 Sections Contained in Wills
Although there is no required form for a will, judges may see the following sections in wills that
they review as part of a probate case:
The contents of wills vary depending on who prepares them. Common provisions of a will may
include:
Introductory statement. For example, "I, __________, of ___________ County, State
of New Mexico, being of sound mind, make, publish, and declare this to be my Last
Will and Testament, hereby revoking all former wills and codicils made by me.‖
Statement of family history, listing spouses, if any, and children by name.
Appointment of a personal representative and an alternate personal representative.
Summary of the personal representative's duties and powers.
Directions on how estate debts will be paid.
Instructions about family and personal property allowances (if testator is married or
has minor or dependent children).
Specific gifts to people, such as "I devise $100 to my friend Miguel Murphy." The
will should state clearly what happens to Miguel Murphy's gift if he dies before the
testator.
Reference to a list of tangible personal property.
Residuary clause stating who receives the rest of the estate and what happens to each
gift if one of the beneficiaries (called ―devisees‖) dies before the testator. These
contingent devisees are only entitled to the devise if the primary devisee predeceases
the testator. A trust may be named as the beneficiary in the will. This type of will is
called a ‗pourover will‘ (see below for more information). Remember that the people,
charities, trustees of trusts, and other recipients named in a will to receive gifts are all
devisees (Section 45-1-201(11)).
Signature and date lines for testator and two witnesses.
Clause attesting that the testator: (1) signed and executed the will, (2) signed
willingly, (3) executed the will freely and voluntarily, and (4) was eighteen years of
age or older, of sound mind and under no constraint or undue influence.
Clause attesting that the two witnesses: (1) saw the testator sign and execute the will,
(2) saw the testator sign willingly, (3) when signing the will, each were in the
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presence of the testator and in the presence of each other, (4) witnessed the testator's
signing, and (5) believed the testator was eighteen years of age or older, of sound
mind and under no constraint or undue influence. Section 45-2-504(A).
Self-proving clause that includes a signature line for a notary public, as well as
signature lines for testator and two witnesses, plus a line for a notary public to sign
and stamp or seal the will. Although rarely done, a self-proving clause can be
executed on a different day than the day the will was signed. Section 45-2-504(B).
Many wills that judges encounter are prepared by attorneys. The will may have been created in
another state, and judges may have to research the other state‘s laws regarding how to make a
valid will there. An individual is allowed to prepare his or her own will. However, lack of
familiarity with legal terminology, drafting, and problems with do-it-yourself wills may mean
that preparing one‘s own will causes more problems than it solves.
Practical Tip: Most wills contain an attestation clause, language (usually at the end of the will) that says
the testator and witnesses were all in each other‘s presence, watched each other sign, and
that the testator signed willingly and was under no undue influence. A will that appears to
have the required signatures and which contains a proper attestation clause is admitted to
probate without further proof. Section 45-3-303(C), NMSA 1978.
If further proof of the validity of the will is necessary, the judge has two options:
The court can presume execution if the will appears to have properly executed; or
The court may accept a sworn statement or affidavit of any person who knows the
circumstances of execution, whether or not the person was a witness to a will. Section
45-3-303(C). This provision is useful especially for do-it-yourself wills that may not
have all of the required language set out in Section 45-2-504.
2.3. Other Kinds of Wills
2.3.1 Holographic Wills
Holographic wills are wills in the handwriting of the testator and signed by the testator, but
without the signatures of witnesses. New Mexico does not recognize holographic wills made
in this state. In fact, the definition of "will" specifically excludes a holographic will. Section 45-
1-201(A)(57).
If a holographic will was validly made in a state that recognizes them, and the testator then
moved here and died, the judge could possibly admit that will. If a probate judge is presented
with a handwritten, unwitnessed will from another state, he or she must do legal research about
the other state‘s law on holographic wills. If the other state allows holographic wills, the judge
should modify the order to explain why the holographic will is being admitted to probate.
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A handwritten will that contains the signature of the testator and two witnesses is not a
holographic will! New Mexico law does not require a will to be typed, only written, so a valid
handwritten will signed by the testator and two witnesses should be admitted to probate.
2.3.2 Joint Wills
Joint wills mean one original will for two people. These are not favored in modern times and are
no longer prepared by attorneys for clients. Each person signs his or her own will. However,
judges may encounter an occasional joint will prepared many years ago. If the one joint will
needed to be probated at the death of the first spouse, the judge would probably use an
authenticated copy of the original will if a second probate were needed.
2.3.3 Mutual Wills
Mutual wills mean two almost identical wills for two people, usually spouses. These are also
known as ―I love you wills‖ or ―mirror wills.‖ Mutual wills leave property to each other, then to
identical successor devisees.
2.3.4 Wills with a Contract Not to Revoke
Sometimes joint or mutual wills contain language that the wills cannot be revoked after the first
person dies. The execution of a joint will or mutual will does not create a presumption of a
contract not to revoke the will or wills. A contract to make a will or devise or not to revoke a will
or devise can only be created by specific writings that make the testator‘s intent clear. See
Section 45-2-514.
A New Mexico case, In the Matter of the Estate of Kerr, 121 N.M. 854 (Ct. App. 1996),
discusses joint and mutual wills and contracts not to revoke.
2.3.5 Pourover Wills
Pourover wills are wills that are executed at the same time as a trust to ensure that all assets are
transferred into the trust when the trustor dies. The pourover will states that any assets remaining
outside of the trust at the time of the trustor‘s death shall ‗pour over‘ from the decedent‘s estate
into the trust. The residuary clause of a pourover will leaves the decedent‘s assets to ―the Trustee
of the X Revocable Living Trust dated ____________‖ instead of to individual recipients.
A pourover will should not need to be used if a trust was properly and fully funded during the
trustor‘s lifetime, but a trustor may die before transferring all assets into a revocable living trust
that he or she has created or fail to transfer all assets prior to death. Or the trustor may acquire
additional assets through inheritance, gift, lottery winnings or other means a long time after
creating the trust and may forget to transfer those new assets into the name of the trustee of the
trust. Failure to do so defeats one reason to have a trust: to avoid probate and court. Assets that
were not properly transferred into the trust prior to the trustor‘s death must be transferred via the
pourover will through a court probate procedure.
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The probate judge has the power to admit a pourover will to probate when no dispute
exists. However, only the district court has jurisdiction over trusts themselves, including trust
administration or conflicts.
2.3.6 Living Wills
Living wills are health care directives that instruct decision-makers and health care providers not
to provide extraordinary medical intervention to prolong life. Also called ―Right to Die
Statements.‖ Living wills are not testamentary instruments like regular wills, but people often
confuse the terms.
2.4 Locating the Will
2.4.1 Safe Deposit Box
When someone dies, the heirs of the estate do not always know where to look for the original
will or if one even exists. One place a person might look for the original will is in the deceased
person‘s safe deposit box. Specific banking regulations apply to the search of someone‘s safe
deposit box after the death of that person.
Section 58-11A-4(A) outlines the search procedure upon the death of a lessee of a safe deposit
box. A financial institution where the safe deposit box is located must permit the person named
in a court order, or if no order exists, the spouse, parent, an adult descendant or a person named
as a personal representative in a copy of a purported will produced by him, to open and examine
the contents of a safe deposit box leased by a decedent or any documents delivered by a decedent
for safekeeping, in the presence of an officer of the financial institution, and ―upon execution of
a receipt:
(1) any writing purported to be a will of the decedent;
(2) any writing purported to be a deed to a burial plot or burial instructions to the person
making the request for a search; or
(3) any document purported to be an insurance policy on the life of the decedent to the
person named as a beneficiary in the policy.
B. No other contents of a safe deposit box shall be removed pursuant to this section,
except as provided in the Probate Code [Chapter 45 NMSA 1978].‖
See also Section 58-10-108 (Saving & Loan Institutions).
Practical Tip: Many New Mexico financial institutions are unfamiliar with this law and may need to be
provided a copy. In rare instances a probate judge may enter an order directing the financial
institution to comply with Section 58-11A-4 and release any original will contained in the
safe deposit box of the decedent.
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Judges should be aware that New Mexico‘s Uniform Unclaimed Property Act, Section 7-8A-3,
states that tangible property held in a safe deposit box or other safekeeping depository in the
ordinary course of the holder's business and proceeds resulting from the sale of the property
permitted by other law, are presumed abandoned if the property remains unclaimed by the owner
for more than five years after expiration of the lease or rental period on the box or other
depository. Unclaimed property is discussed in Chapter 10 of this manual.
2.4.2 Placing a Will on Deposit with the District Court
A will may be deposited by the testator or his agent with the clerk of any district court in New
Mexico for safekeeping pursuant to rules of that court. The will shall be kept confidential.
During the testator's lifetime, a deposited will shall be delivered only to him or to a person
authorized in writing signed by him to receive the will. A conservator may be allowed to
examine a deposited will of a protected testator under district court procedures designed to
maintain the confidential character of the document to the extent possible and to assure that it
will be resealed and left on deposit after the examination. Upon being informed of the testator's
death, the district court clerk shall notify any person designated to receive the will and deliver it
to him on request, or the court clerk may deliver the will to the appropriate court. Section 45-2-
515.
2.4.3 Do Not Record a Will with the County Clerk’s Office
People who make a will sometimes mistakenly think they should record a notarized will with the
county clerk‘s office during their lifetime. Recording a will prior to death is unwise and
unnecessary. The will then becomes public record and even if the person revokes the will later,
the recorded will stays in the public record.
2.4.4 Leaving Original Will with Attorney Who Prepared It
People sometimes leave the original will with the attorney who prepared it. However, it can be
difficult or impossible to locate if the attorney moves, retires, becomes a judge, is disbarred, sells
his or her law practice, or dies. Some attorneys prepare duplicate originals, giving one to the
client and retaining the other. If only one original can be found after the testator dies, a question
may arise about whether the will has been revoked.
2.5 Codicils to Wills
Codicils are amendments, updates, or changes to a will. Often a person has a valid will and just
wants to modify the appointment of a personal representative, change a beneficiary, or indicate a
change in marital status. Some people take their original will, cross out the old language, and
write the changes on the original will. These changes are not valid because they were not
executed in the presence of two witnesses.
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The codicil should: (1) identify the will that is being amended, including the date the will was
signed; (2) state the testator‘s name and domicile; (3) specify in detail what changes are being
made; and (4) state which sections of the will remain in effect.
To be valid, the codicil must be executed in the same manner as a will. The testator must sign
and date the codicil in the presence of two witnesses who also sign the codicil. New Mexico law
does not require the codicil to be notarized, but attorneys (or their staff) usually notarize wills
and codicils that they prepare.
Practical Tip: An invalidly executed will can be ―cured‖ by a properly executed codicil. For example, a
will may lack the signatures of two witnesses, but a later codicil to the will may be properly
executed. Because the definition of ―will‖ includes a codicil (Section 45-1-201(A)(57)), the
valid codicil may ―cure‖ the improperly executed will. The judge should look for language
in the codicil that says ―In all other respects, I affirm my will dated ______.‖ or similar
language. If the codicil is validly executed, the judge may be able to admit the invalidly
executed will to probate, but would need to slightly amend the order that the judge signs.
New Mexico law does not prohibit a person from adding a codicil to a will that was prepared and
executed in another state. However, some attorneys prefer to prepare a new will rather than
update a will made in another state.
Sometimes a testator‘s will includes more than one codicil. The judge should review each codicil
to make sure it is valid and properly executed. Each codicil should be admitted to probate with a
separate stamp. How to admit wills and codicils to probate is discussed in Chapter 4.
Practical Tip: Section 45-2-516 requires any person who has custody of a decedent‘s will to deliver the
will to a person to secure its probate or, if no such person is known, to an appropriate court.
Contempt penalties are possible against someone who refuses to hand over a decedent‘s
will. Sometimes the judge may find it useful to hand a copy of Section 45-2-516 to an
applicant or family member.
2.6 Judge’s Review of Original Will and Codicils, If Any
The judge‘s job in reviewing a will is important. The same procedure applies to codicils. The
judge should carefully inspect the will and consider:
Is the will original? Are all pages original?
Are the signatures original?
If notarized, is the notary seal or stamp original?
Are all pages present and accounted for?
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Are there any signs of possible revocation, such as scratched out words, burn marks,
etc.? If there is some question about whether the will has been revoked, the case
should be filed in district court. Sometimes there are changes to the will (such as
scratched out or changed words or names that are initialed by the testator). Unless
these changes were signed in the same manner as a will, they are not valid
amendments, but could be valid revocations. Invalid amendments do not necessarily
affect the validity of the rest of the will unless someone challenges the will. If a will
is challenged after the judge admits it, the judge will need to transfer the case to
district court.
Is the personal representative first named in the will the same one who is asking to be
appointed? If not, is the successor personal representative named in the will applying
and has he or she stated why the first choice cannot serve? If not deceased, has the
first personal representative completed a proper renunciation and concurrence or
consent?
Do the names in the family history section of the will (listing spouse and children), if
any, match the spouse and children‘s names listed in the application?
Are all devisees listed in the will also listed in the application, including trustees,
schools and charities?
Does the date the will was signed match the date of the will in the application?
Practical Tip: Wills do not expire, so old wills that have not been revoked and are properly executed
should be admitted. New Mexico also accepts out-of-state wills that comply with our
execution requirements OR complied with their own state‘s requirements at the time they
were executed, see Section 45-2-506. Legal research about the other state‘s law on will
executions might be necessary. Finally, there is no requirement that wills be typed.
Handwritten wills are acceptable if they are properly signed and witnessed.
2.7 How to Revoke a Will
The most effective way to revoke a will is to make a new will that completely disposes of the
testator‘s entire estate. The new will usually includes language, such as, "This will revokes all
prior wills and codicils made by me." The date--month, day and year--that the testator signed the
new will should also appear at the end of the new will.
Some people wish to revoke only a portion of their wills by making a codicil (amendment) to the
will. As noted above, a codicil should: (1) identify the will that is being amended, including the
date the will was signed; (2) state the testator's name and domicile; (3) specify in detail what
changes are being made; and (4) state which sections of the will remain in effect.
A codicil must be executed in the same manner as a will. This means that the testator must sign
and date a codicil in the presence of two witnesses who also sign the codicil. New Mexico law
does not require a codicil to be notarized, but attorneys (or their staff) usually notarize wills and
codicils that they prepare.
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As of January 1, 2012, New Mexico law allows a separate writing to revoke a will. A testator can
revoke a will by executing another subsequent document in the manner provided for in Section
45-2-502 or 45-2-504 NMSA 1978, or both, that expressly revokes the previous will or part of
the will. Section 45-2-507(A)(2). This means that a separate writing revoking a will must be
executed in the same manner as a will or codicil—signed by the testator in the presence of two
witnesses. Notarization is optional. A separate writing expressly revoking a will that is not
properly executed would not work, even if the testator‘s intent is clear. If a probate judge is not
certain whether a separate, written document revokes a will, the case should be transferred
to the district court for an evidentiary hearing.
Before this law went into effect, the New Mexico Court of Appeals has ruled that a separate,
notarized document revoking a prior valid will does not constitute a valid revocation of the will
under our state's laws. For attorneys who are shocked to learn this, the case cite is In re: Estate of
Martinez, 127 N.M. 650 (Ct.App.1999).
New Mexico law sets out additional methods to revoke a will--"performing a revocatory act on
the will if the testator [maker of the will] performed the act with the intent and for the purpose of
revoking the will…." Another individual can perform this revocatory act in the testator's
"conscious presence and by the testator's direction." Section 45-2-507(A)(3).
Revocatory acts on the will include "burning, tearing, canceling, obliterating or destroying the
will or any part of it," even if the burn, tear or cancellation does not touch any of the words on
the will. However, if the intent of the testator is not clear from the revocatory acts or there is
some question about who actually performed the acts, a lawsuit could ensue.
Lawsuits can be long and expensive, and the more a family dislikes or distrusts each other, the
more expensive lawsuits become. Creative arguments can be made to prove or disprove a
testator's intent, soundness of mind, ability to be unduly influenced, etc. A testator may intend to
destroy a will by shredding or burning it, but forgets to destroy a copy or duplicate original of the
will. Arguments could then be made in court about whether the copy should be admitted or
whether the will was actually revoked.
Another way to revoke a will is by divorce or annulment. Bequests made to an ex-spouse in a
will executed prior to a divorce or annulment are revoked under New Mexico's laws. Section 45-
2-804. Nominations of an ex-spouse to serve as a personal representative, executor, trustee,
conservator, agent or guardian for the former spouse are similarly revoked upon divorce or
annulment.
This method only revokes the portions of the will that pertain to the ex-spouse. The rest of the
will would remain in effect unless it was revoked by a new will, codicil, or some other
revocatory act discussed above.
Divorce or annulment also excludes an ex-spouse from inheriting under the terms of a payable
on death (POD) accounts, transfer on death (TOD) accounts, other beneficiary accounts, such as
life insurance, joint tenancy property, or a revocable trust. Specific to joint tenancies, New
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Mexico law states that a divorce or annulment of a marriage "severs the interests of the former
spouses in property held by them at the time of the divorce or annulment as joint tenants with the
right of survivorship, transforming the interests of the former spouses into equal tenancies in
common." Section 45-2-804(B)(2).
There is an exception to the automatic revocation rule. The terms of a divorce decree, court
order, or a contract relating to the division of the marital estate made between the divorced
individuals before or after the marriage, divorce, or annulment may mandate that the ex-spouse
receive life insurance, pension benefits, or other assets from a former spouse. The terms of court
orders or contracts, such as pre-nuptial and post-nuptial agreements, should not be affected by
the automatic revocation rule.
While revocation is the general rule, some people want to include an ex-spouse in a will. If this is
the case, people should update their wills after a divorce to expressly state their wishes to
include the ex-spouse in spite of the divorce.
Also, spouses who are separated, but not divorced, retain certain rights under the Uniform
Probate Code.
Similarly, someone who is found guilty of feloniously and intentionally killing a decedent loses
the right to inherit, collect as a named beneficiary, or serve as personal representative of the
decedent‘s estate. Sections 45-2-803(B)(C). Specific to joint tenancies, New Mexico law states
that the felonious and intentional killing a decedent ―severs the interests of the decedent and
killer in property held by them at the time of the killing as joint tenants with the right of
survivorship, transforming the interests of the decedent and killer into equal tenancies in
common." Section 45-2-803(C)(2).
Probate judges should be aware that in New Mexico, if the decedent was involved in a divorce
proceeding at the time of his/her death, the judge should transfer the case to the district court for
a formal proceeding. Chapter 3 of the manual addresses this issue in more detail.
2.8 Tangible Personal Property List
Disputes about inheritances can center on an item of furniture, piece of artwork, or jewelry. New
Mexico law allows a testator to make a written statement or list of tangible personal property not
otherwise specifically disposed of by a will to give special china, silver, musical instruments,
furniture, jewelry, guns, boats, cars, artwork, and other personal items to certain people. As part
of a will, a testator may prepare this separate list of tangible personal property and the recipients
of each item.
Wills prepared by New Mexico attorneys usually contain language that refer to this list of
tangible personal property, which does not include other types of personal property such as
stocks or bank accounts. The language in the will may also say that if no list can be found within
30 days, presume that no list exists. To be valid, the list must be signed by the testator but does
not need to be notarized. The list must also describe each item and recipient ―with reasonable
certainty.‖ The list is often stored with the original will, so the personal representative does not
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have to search for it later. A ―letter of instructions‖ might be construed as a list of tangible
personal property if it meets the legal requirements for the list listed below.
The list may be prepared before or after making the will. The list can be changed whenever the
testator wants, without having to change the will and without the help of an attorney. Money
may not be put on this list. This list must be signed by the testator, but does not need to be
signed by witnesses. Dating the list is also important because the personal representative or court
will look at the most recent list if a dispute arises. This list becomes part of the will and is
admitted to probate with the will by the probate judge.
Section 45-2-513 contains the requirements of this list. A will may refer to a written statement or
list to dispose of items of tangible personal property not otherwise specifically disposed of by the
will, other than money. To be admissible under this section as evidence of the intended
disposition, the writing must be signed by the testator and must describe the items and the
devisees with reasonable certainty. The writing may be:
A. referred to as one to be in existence at the time of the testator's death;
B. prepared before or after the execution of the will;
C. altered by the testator after its preparation; or
D. a writing that has no significance apart from its effect on the dispositions made by the will.
A New Mexico case, In the Matter of the Estate of Russell, 119 N.M. 43 (Ct. App. 1994)
interprets this statute.
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CHAPTER 3
Personal Representatives and
Special Administrators
This chapter covers:
Personal representatives, including priority, consent, co-personal and successor
representatives, resignations, bonds, limited appointments and duties.
Special administrators, including a sample order of appointment with limited powers.
3.1 Personal Representatives
A ―personal representative,‖ once appointed by the court, has legal authority to act on behalf of a
decedent, settling the estate, paying taxes and creditors, distributing property, and other matters.
A personal representative appointed by the court ―stands in the shoes‖ of the decedent for all
estate and tax matters. Personal representatives must be eighteen years of age or older. See
Section 45-3-203(F)(1).
Practical Tip: A person is not legally the ―personal representative‖ until a court appoints him/her. People
often phone the court and say, ―I‘m the personal representative of the estate of so-and-so.‖
In reality, what they mean is the decedent‘s will has named them as personal representative.
But until that person takes steps to file a case and is appointed by the court in a written
order, he/she has no legal authority to act on behalf of the estate. The judge or court staff
may help to clarify this situation by explaining that the will expresses the testator‘s intent
about whom the court should appoint and how the personal representative should distribute
the estate. But until a court order is signed by the judge, a personal representative named in
the will has no legal authority.
3.1.1 Who Has Priority to Serve?
It is the probate judge‘s duty to appoint the personal representative who has the highest priority
to serve. Section 45-3-203(A) sets out who has priority from first to last:
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1. Personal representative named in the will [note: alternate personal representative has priority
if first-named personal representative will not serve];
2. Surviving spouse who is a devisee named in the will;
3. Other devisees of decedent;
4. Surviving spouse of decedent, when there is no will;
5. Other heirs of decedent, when there is no will (if an heir is missing and that missing heir has
equal priority to serve as personal representative, probate court lacks jurisdiction to appoint);
6. One nominated by those with priority to serve, when there is no will, or when all the heirs
and devisees decline to serve.
7. Any interested person, such as a creditor or the state, (other than a spouse, devisee or heir)
can apply to have any qualified person serve. Creditors who ask to be appointed as personal
representative must wait 45 days from decedent‘s death (Section 45-3-203(F)(3)). The
probate court probably does not have the authority to appoint a creditor as personal
representative unless those with higher priority to serve agree. But, if the decedent had no
family members, it is possible that the creditor is the one with the highest priority for
appointment.
Practical Tip: A person entitled to appointment as personal representative may choose decline and
nominate in writing a qualified person as personal representative. The person so nominated
shall have the same priority as the one who nominated the person. The law states that a
nomination or renunciation shall be signed by each person making it, the person's attorney
or the person's guardian or conservator. Section 45-3-203C. A copy of document showing
the guardian or conservator‘s authority should be included in the court file.
If someone without highest priority asks the court to appoint them as personal representative and
has not obtained written consents from those with higher priority, a formal proceeding is
required. Because probate judges do not have jurisdiction over formal proceedings, only the
district court may appoint someone who does not have highest priority after notice and a hearing
to all interested persons. The law about this issue states, ―Appointment of one who does not have
highest priority, including highest priority resulting from renunciation or nomination determined
pursuant to this section, may be made only in formal proceedings. Before appointing one
without highest priority, the court shall determine that those having highest priority, although
given notice of the proceedings, have failed to request appointment or to nominate another for
appointment and that administration is necessary.‖ Section 45-3-203(E). If a judge is asked to
appoint someone who does not have highest priority for appointment and the judge has already
docketed the case, the judge should transfer the case to district court for a formal proceeding.
Important Notes: An individual who ―feloniously and intentionally‖ kills a decedent is barred from serving as
personal representative of decedent‘s estate, even if nominated in decedent‘s will. Section
45-2-803(C)(1)(c).
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An ex-spouse is also barred from serving as personal representative of decedent‘s estate,
even if nominated in decedent‘s will. Section 45-2-804(B)(1)(c). Exception: a decedent
could execute a new will after the divorce date, naming the ex-spouse as personal
representative. Spouses who are separated, but not divorced, retain rights under the Uniform
Probate Code.
Since 1993, under domestic relations law Section 40-4-20(B), the rule in New Mexico is that
if one spouse dies during the pendency of a divorce, the divorce and related proceedings
continue to the conclusion as if both parties have survived. The New Mexico Supreme Court,
in the case of Oldham v. Oldham, 2011-NMSC-007, 149 N.M. 215, ruled that appointing the
surviving spouse as personal representative when a divorce was pending at the time of death
would create an inherent conflict of interest. If a probate judge is aware that a divorce was
pending when a decedent died, the judge should probably transfer the case to the district
court for a formal proceeding to determine who should serve as personal representative. The
Oldham case can be read at http://www.nmcompcomm.us/nmcases/NMSC/2011/11sc-
007.pdf.
Example 1: Decedent, who was married at her death, dies with a will that names decedent‘s best
friend as personal representative. Who has priority to serve?
Answer: Decedent‘s best friend named in the will has highest priority to serve. It does not matter
whether Decedent has a spouse or children. The intent of the testator—to name her best friend as
personal representative—controls. If the best friend does not want to serve, then the judge must
look to Section 45-3-203(A) for guidance about who has next highest priority to serve as
personal representative.
Example 2: Decedent, who was married at her death, dies without a will. Who has priority to
serve as personal representative?
Answer: Decedent‘s spouse has highest priority to serve. If he does not want to serve, he can
designate another to serve for him (more on this below).
Example 3: The will names the spouse to serve as personal representative. Spouse is now
divorced from decedent. Child A is nominated as the alternate personal representative if the
spouse is unable or unwilling to serve. Who has priority to serve?
Answer: Child A, since ex-spouses generally lose their right to serve as personal representative
and their inheritance rights, unless the ex-spouse signed a new will after the divorce. Section 45-
2-804.
Example 4: Stephanie and Joe were married for many years. Stephanie dies without a will. Joe
signs a consent allowing his son Greg to be personal representative. Stephanie and Joe have three
other children, none of whom are listed on the application. Greg appears in court to file the
paperwork. What should the judge do?
Answer: Section 45-3-203C allows a surviving spouse to nominate a qualified person to act as
personal representative, conferring the person‘s priority for appointment on the nominee. This
means that Joe can renounce his right to serve as personal representative of Stephanie‘s estate
and nominate in writing whoever he wants to serve as personal representative in his place. No
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consents are required. Once Joe nominates Greg, Greg has the highest priority to serve as
personal representative. Before signing an order appointing Greg, however, the judge can order
Greg to submit the names and addresses of Joe‘s other children and give them notice of the
proceeding, as the law requires. If Greg refuses to cooperate, the judge can decline to sign the
order appointing Greg and transfer the case to the district court for a formal proceeding.
Example 5: Decedent dies without a will. There are four adult children, all living. Who has
priority to serve?
Answer: All four have equal priority to serve because they are all decedent‘s heirs. All four must
consent in writing to the appointment of one of them or someone else they all can agree upon in
order for the probate court to have jurisdiction.
Example 6: Decedent dies without a will. There are four adult children, two of whom cannot be
found. Who has priority to serve?
Answer: All four children have equal priority because they are all decedent‘s heirs. If the other
two cannot be found to consent in writing to the appointment of a personal representative, the
parties must proceed to district court. (Sometimes somebody in the family knows where the
missing children or heirs are; they just do not like them or think they deserve an inheritance.)
Example 7: Decedent dies without a will. There is no surviving spouse, but there are four adult
children, one of whom has died, leaving two adult children. Who has priority to serve?
Answer: The three living adult children and two adult children of the deceased child all have
equal priority to serve. All must concur in the appointment of someone as personal representative
because they all are heirs. See Sections 45-3-203(A)(5), 45-1-201(A)(20), 45-2-103(A), and 45-
2-106(B).
Example 8: Decedent dies without a will. There are no surviving spouse, children, or parents,
but decedent has twelve adult siblings, five of whom have died, leaving 22 adult children among
them. Who has priority to serve as personal representative?
Answer: The seven living adult siblings and 22 adult children of the deceased siblings all have
equal priority to serve because they are all heirs. All must consent in writing to the appointment
of someone as personal representative. See Sections 45-3-203(A)(5), 45-1-201(A)(20), 45-2-
103(A), and 45-2-106(B).
Example 9: Esperanza, age twelve, is the only child of decedent, who has no will and no spouse.
Who has priority to serve?
Answer: Esperanza. A personal representative must be 18 to serve, but under Section 45-3-
203(C), a minor child who has priority to serve (or her guardian) can nominate a qualified person
to act as personal representative. If this is not done, then other heirs of decedent have equal
priority to serve. Next in line (under Section 45-2-103) are decedent‘s parents. If both are alive,
both have equal priority to serve. One could consent to the other serving, however.
Example 10: Yolanda and Heather are legally married in Iowa, a state that allows same sex
marriages. The couple moves to New Mexico. Yolanda dies, and her will names Heather, the
surviving spouse, to serve as personal representative. Who has priority to serve?
Answer: Heather. She is the first-named personal representative, whether or not she is a spouse.
The person with named in the will has the number one priority to serve. Section 45-3-203(A)(1).
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Although the status of spouse does not affect the appointment of personal representative, it could
affect other issues. If a dispute arises, the case should be transferred to the district court.
Example 11: Decedent dies with a will that appoints her husband as personal representative. At
the time of her death, decedent and husband were involved in ongoing divorce proceedings.
Daughter is second-named personal representative. Who has priority to serve?
Answer: The New Mexico Supreme Court ruled in Oldham v. Oldham, 2011-NMSC-007, 149
N.M. 215 that, because a divorce proceeding was pending when husband died, the wife could not
be appointed as the personal representative of the deceased husband‘s estate due to an inherent
conflict of interest. The Supreme Court further stated that the district court in a formal
proceeding must determine who is qualified to serve as personal representative. The judge should
transfer the case to the district court for a formal proceeding and explain that a divorce was
pending at the time of husband‘s death.
Example 12: Mark dies intestate. His surviving spouse Joy wants to wait a year to file a case in
order to avoid creditors‘ claims. Bank of Wazoo files an Application for Informal Appointment
of Personal Representative in the probate court. Who has priority to serve?
Answer: Joy has priority to serve. See Section 45-3-203(A)(2). If Joy refuses to sign a consent to
the creditor serving as personal representative, the probate judge should decline to sign an order
appointing the creditor as personal representative. The creditor must file a formal proceeding in
the district court because the creditor does not have highest priority to serve. Section 45-3-203E.
3.1.2 What If Person With Highest Priority Does Not Want to Serve?
The person with highest priority does not have to agree to serve. He/she has two options under
Section 45-3-203(C):
1. Nominate someone else to act in his/her place: The person with highest priority can
―nominate a qualified person to act as personal representative by an appropriate writing filed
with the court and thereby confer the person's relative priority for appointment on the
person's nominee.‖ This means the nominee now has the highest priority to serve. This
option does not apply to personal representatives named in a will, but does apply to those
listed in Section 45-3-203(A)(2) through (5). The do-it-yourself forms do not contain
language for this option, so the initial application form would need to be modified; or
2. Renounce his/her right to serve and/or nominate another: A person can renounce his/her right
to nominate [discussed in 1. above] or renounce his/her right to appointment as personal
representative by filing an appropriate writing with the court. When two or more persons
share equal priority, all those who do not renounce must concur in nominating another for
appointment by an appropriate writing filed with the court. The person so nominated shall
have the same priority as those who nominated the person. Section 45-3-203(C). The do-it-
yourself forms contain language about ―consenting to the appointment,‖ which all others
with equal priority to serve as personal representative must sign. ALL people with equal
priority must consent in writing to someone serving as personal representative, and if
they do not agree, they must go to district court for a formal proceeding. (see Section
45-3-203(E)).
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3.1.3 When Consents are Required
Judges must look to Section 45-3-203 for guidance on who has highest priority to be appointed
as personal representative. Written consents are required when someone who seeks appointment
does not have the highest priority or has equal priority with others to serve as personal
representative. The law uses the term ―nominate‖ instead of ―consent to‖ a qualified person to act
as personal representative. The Probate Court Forms use the term ―consent‖ for someone to
agree to the appointment of a personal representative. The concept is the same: consents,
renunciations, and nominations must all be in writing and signed by the people who are agreeing.
Often a case is filed with the court, and it does not include the required consents. The judge
cannot sign the order until all people with equal priority have consented in writing to the
appointment of a personal representative. It is the applicant’s job, not the judge’s job, to
obtain the consents. The judge has the authority to write a letter to the applicant about the
requirement for consents, citing the law. Any correspondence from the judge should be made a
part of the court file. Many times consents are easy for the applicant to obtain, but other times
there is disagreement. The judge may also do an order requiring the applicant to obtain the
consents. If all required consents are not submitted to the probate court, the case must be
transferred to the district court.
If the personal representative named in a validly executed will is willing to serve and submits the
proper paperwork to the court, the law does not require consents before that personal
representative is appointed by the judge. Nor is the applicant required to provide notice of
the application prior to his/her appointment.
If the first personal representative named in a will does not want to serve, he or she would need
to sign a renunciation. The second-named personal representative named in a will would then
have next highest priority to be appointed. If the first-named personal representative has died or
is incapacitated, it is up to the judge whether to ask for evidence of this or just to appoint the first
alternate personal representative named in the will.
If there is no will, the surviving spouse, if any, of the decedent has priority to serve as personal
representative. He or she is allowed to nominate another to act as personal representative by
signing a written consent. If the decedent had no spouse, then all of the heirs have equal priority
to serve as personal representative, and all must consent in writing to the appointment of a
personal representative. Heirs are discussed in detail in Sections 1 and 4 of this manual.
If one of people who has highest priority to serve as personal representative is a minor (under
age 18) or has been adjudged incapacitated by a court, a conservator may consent on the minor
or incapacitated person‘s behalf. If no conservator is appointed, then a guardian of the minor or
incapacitated person may exercise the same right to nominate, to object to another's appointment,
or to consent to the appointment of a personal representative. Also, an incapacitated person may
have a power of attorney designating an agent to handle their business matters. This agent can
sign a consent on behalf of the incapacitated person. Putting a copy of the power of attorney in
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the court file to show the signer had authority is a good idea. An attorney may not consent on
behalf of a client, minor, or incapacitated person. See Section 45-3-203(D).
Practical Tips: The law does not require consents to be notarized.
A ―Waiver of Notice‖ signed by an heir, devisee or other interested person is not the same as
a ―Consent to Appointment of Personal Representative.‖
Probate courts lack jurisdiction to determine who the heirs of an estate are. But judges need
to understand the laws about heirs so that the judges know which consents are required.
Example 1: Donna, decedent‘s daughter, is nominated as personal representative in decedent‘s
will. Decedent has five other daughters. Donna agrees to serve. What consents are required?
Answer: Donna has priority to serve as personal representative. No consents are required prior
to her appointment.
Example 2: Lori, decedent‘s spouse, is nominated as personal representative in decedent‘s will.
Lori does not want to serve, so she asks her friend Tony to serve on her behalf. Who has priority
to serve? What consents are required?
Answer: First, Lori must sign a written renunciation that she does not wish to serve, which is
filed with the court. However, Tony does not have priority because someone nominated as
personal representative cannot confer priority onto another nominee. Section 43-3-203(C). If a
successor personal representative is named in the decedent‘s will, that successor has next highest
priority to serve as personal representative. Otherwise, Section 43-3-203(A)(2) says the
surviving spouse (if the spouse is a devisee in the will) has next priority. If there is no spouse,
then all devisees named in the will have equal priority to serve as personal representative,
Section 43-3-203(A)(3), and they would all need to consent in writing to the appointment of a
personal representative.
Example 3: John dies with a will. He has three children. His will names his surviving spouse
Betty as personal representative. The will names his son Bill as the alternate personal
representative. Betty declines to serve. Who has priority to serve as personal representative?
What consents are required?
Answer: Bill, because he is the alternate named in the will; those nominated in the will have first
priority to serve. See Sections 45-3-203(A)(C). No consents are required if Bill is willing to
serve, but Betty must sign a written renunciation that she does not wish to serve, which is filed
with the court.
Example 4: John dies, but does not have a will. He is a widower with three living children. Who
has priority to serve as or nominate a personal representative? What consents are required?
Answer: All three children have equal priority to serve as personal representative. They must all
consent in writing to someone serving as personal representative. If the three children cannot
agree on who will serve, the case must be filed in or transferred to the district court.
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Example 5: Same as above, but none of the children are willing to serve as personal
representative.
Answer: They must all consent in writing to another mutually agreeable person to serve as
personal representative. If they cannot agree, the case must be filed in or transferred to the
district court.
Example 6: Graciela dies without a will. She is a widow with eight children, two of whom have
died and left five children, all of whom are over the age of 18. Who has priority to serve as
personal representative? What consents are required?
Answer: The six surviving children and five children of the deceased children all have equal
priority to serve or nominate another as personal representative. All eleven must consent in
writing to one or more of them serving as personal representative or may nominate another
mutually agreeable person to serve as personal representative. If they cannot agree, the case must
be filed in or transferred to the district court.
Example 7: Juanita dies without a will. She is a widow with two living children and one
deceased child. The deceased child had two children, one a minor and one an adult. Who has
priority to serve as personal representative? What consents are required?
Answer: Juanita‘s children and the children of the deceased child have equal priority to serve or
nominate another. The minor child cannot legally serve as personal representative but may still
nominate another (depending on the age of the child, the judge may want to have the child's
guardian sign on his or her behalf). As above, Juanita‘s children and adult grandchild (with the
concurrence of the minor or his or her guardian) must all consent in writing to one or more of
them serving as personal representative or may nominate another mutually agreeable person to
serve as personal representative. If they cannot agree, the case must be filed in or transferred to
the district court.
Example 8: Tom, who has no family, has a will that lists a bank to serve as personal
representative. No alternate personal representative is listed. Four charities are listed as devisees
under Tom‘s will. After Tom‘s death the bank renounces its right to serve as personal
representative and concurs in Attorney Mary Jane serving instead. Who has priority to serve as
personal representative under these facts? What consents are required?
Answer: Remember from Example 1 above that someone nominated as personal representative
cannot confer priority onto another nominee. Section 43-3-203(C). Since no successor personal
representative is named in the decedent‘s will and decedent has no family, then all of the
devisees (in this case, the four charities) named in the will have highest and equal priority to
serve as personal representative. Section 43-3-203(A)(3). If all devisees consent in writing to
Attorney Mary Jane serving as personal representative, then the court can appoint Attorney Mary
Jane as personal representative. If the charities do not all consent to Attorney Mary Jane serving,
the charities could all agree to another person serving. Or the case could be filed in the district
court for a formal proceeding that asks for the appointment of a personal representative who does
not have highest priority. See Section 45-3-203(E). If the case is already filed in the probate
court, and there is no agreement, then the probate judge would transfer the case to the district
court for a formal proceeding.
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Example 9: Mark dies intestate. His surviving spouse Joy wants to wait a year to file a case in
order to avoid creditors‘ claims. Bank of Wazoo files an Application for Informal Appointment
of Personal Representative in the probate court. Who has priority to serve? What consents are
required?
Answer: Joy has priority to serve. See Section 45-3-203(A)(2). The creditor must obtain a
written consent from Joy before it can be appointed personal representative of the estate. If Joy
refuses to sign a consent to the creditor serving as personal representative, the probate judge
cannot appoint the creditor as personal representative. The creditor must file a formal proceeding
in the district court because the creditor does not have highest priority to serve. Section 45-3-
203E.
3.1.4 Co-Personal Representatives
Sometimes a will names two or more individuals to serve as co-personal representatives. The
will may also provide guidance about whether the signatures of both are required in all instances
or in selected transactions. For example, a will might state, ―Both signatures are required on
court paperwork and on transactions involving over $500.‖ If the will is silent, then Section 45-
3-717 controls. Section 45-3-717 (Co-representatives; when joint action required) reads:
A. If two or more persons are appointed co-representatives, the concurrence of all is
required, unless the will provides otherwise, on all acts connected with the administration
and distribution of the estate. This restriction does not apply when:
(1) any co-representative receives and receipts for property due the estate;
(2) the concurrence of all cannot readily be obtained in the time reasonably available for
emergency action necessary to preserve the estate; or
(3) a co-representative has been delegated to act for the others.
B. Persons dealing with a co-representative, if actually unaware that another has been
appointed to serve with him or if advised by the personal representative with whom they
are dealing that he has authority to act alone for any of the reasons mentioned herein, are
as fully protected as if the person with whom they dealt had been the sole personal
representative.
C. A co-representative who abdicates his responsibility to coadminister the estate by a
blanket delegation breaches his duty to interested persons as provided by Section 3-703
[45-3-703 NMSA 1978].
The court‘s order appointing co-personal representatives and the Letters Testamentary or Letters
of Administration issued by the court should reflect the statutory information regarding co-
personal representatives. Sample language is included in Chapter 4.
It is also possible that people with equal priority to serve as personal representative could concur
in two people serving as co-personal representatives, but this would be unusual.
3.1.5 Successor Personal Representatives
Sometimes the personal representative appointed by the court dies, resigns, or no longer wishes
to serve. Additional paperwork must be submitted to the court asking to have a successor
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personal representative appointed. If there is a will, hopefully it names a successor personal
representative. If there is no will, then the applicant must follow the Priority of Personal
Representative rules, discussed above. The same law that governs the priority for appointment of
a personal representative applies to the selection of successor personal representatives. Section
45-3-203(H). If more than one person has equal priority to be appointed successor personal
representative, written consents to the appointment by all those with equal priority must be
submitted to the court before a successor personal representative can be appointed by the judge.
Sections 45-3-609, 45-3-610 and 45-3-613 govern successor personal representative
appointments. Also, Section 45-3-301(F) contains some language that should appear in the
pleading for a successor personal representative. The successor personal representative would
also need to submit a notarized acceptance, Form 4B-105, and new Letters, Form 4B-106 or 4B-
107.
On the next page is a sample order appointing a successor personal representative.
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Sample Order Appointing a Successor Personal Representative
IN THE PROBATE COURT
COUNTY OF ________________
STATE OF NEW MEXICO
No.
IN THE MATTER OF THE ESTATE OF
_____________________, DECEASED
ORDER APPOINTING SUCCESSOR PERSONAL REPRESENTATIVE
This Court has received an Application for Informal Appointment of Successor Personal
Representative that seeks an Order appointing a successor personal representative. The Court
FINDS:
1. Sections 45-3-303(F) and 45-3-613, NMSA 1978 govern the appointment of a successor
personal representative of an estate.
2. The Court has reviewed the Application for Informal Appointment of Successor Personal
Representative.
3. The personal representative ____________, appointed by the Court on ________,
20____, has submitted a written resignation to the Court. [or can modify to say ―Proof of the
death of personal representative ___________ has been submitted to the Court.‖]
4. _________________ has priority to be appointed as successor personal representative
and has submitted paperwork asking to be appointed. OR
____________ has consented in writing to the appointment of ___________ as successor
personal representative. NMSA 1978, Section 45-3-203.
THEREFORE, THIS COURT ORDERS that:
A. The Application is granted;
B. The appointment of __________ as personal representative of the estate is terminated due
to his/her resignation [or death--modify order as needed]);
C. ____________ shall deliver decedent‘s assets, receipts, accountings and other
information pertaining to the estate to the successor personal representative;
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D. _____________ is informally appointed as the successor personal representative of the
estate of the decedent, without bond, in an unsupervised administration;
E. Letters of Administration [or Letters Testamentary] shall be issued to ___________ upon
his/her acceptance of the office of successor personal representative.
THE HONORABLE ______________
________________________________
__________ County Probate Judge
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3.1.6 Resignation of Personal Representative
A personal representative may resign, but the resignation is not effective until a successor
personal representative has been appointed and qualified, and the assets delivered to the
successor. The personal representative who is resigning has a duty to protect the estate assets and
make an accounting to the successor personal representative (Section 45-3-610).
3.1.7 Removal of Personal Representative
Probate judges lack the authority to remove a personal representative on the motion of the heirs
(or any other interested party). A personal representative can only be removed for cause by the
district court (Section 45-3-611).
3.1.8 Bond Required of Personal Representative
Most informal probate and/or appointment proceedings do not require the personal representative
to be bonded, unless the will requires a bond. Sections 45-3-603 through 606 cover bonds. Bonds
are discussed in Chapter 10.
3.1.9 Limited Appointment of Personal Representative
On occasion a probate judge is asked to appoint a personal representative for a limited purpose,
such as to bring a wrongful death action in district court. Probate judges do not have authority to
limit a personal representative‘s powers or duties. Once a personal representative is appointed
under the Uniform Probate Code, that person must perform all duties required under the Uniform
Probate Code. If someone insists that a judge should make a limited appointment, send him or
her to district court.
Probate judges can limit or specify the powers of a court-appointed special administrator,
discussed below.
3.1.10 Duties of Personal Representative
Section 45-3-703 states that a personal representative is a fiduciary who shall observe the same
standards of care applicable to trustees. A personal representative is under a duty to settle and
distribute the estate of a decedent in accordance with the terms of any probated and effective will
and the Uniform Probate Code and as expeditiously and efficiently as is consistent with the best
interests of the estate. Personal representatives who fail to perform their duties can be removed,
their actions can be undone, they can be sued, and they can be held personally liable for
misdeeds, see Sections 45-3-702 and 45-3-712. Only a district court can remove a personal
representative for cause, see Sections 45-3-611.
Section 45-3-701, et seq. lists the duties of the personal representative. Within ten days of
appointment, the personal representative is required to give Notice to Heirs and Devisees of the
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Estate and to anyone who has demanded notice (Section 45-3-705). Within three months of
appointment, the personal representative must give Notice to Creditors (Section 45-3-801) and
prepare an inventory of the estate (Section 45-3-706). The Personal Representative may also
want to publish a Notice to Creditors to limit the time an unknown creditor has to file a claim
against the estate. (This cannot be used to avoid giving notice to known or reasonably
ascertainable creditors—they must be given actual notice).
Practical Tip: The law requires personal representatives to prepare an inventory of the property of the
decedent owned at the time of death within three months after appointment. Filing this
inventory with the court is optional. Some personal representatives do not file the actual
inventory of the decedent‘s estate in the court file. Judges may instead see a ―Notice of
Preparation of Inventory and Appraisal‖ filed. The notice states that the personal
representative has prepared the inventory as required by law and that the inventory is
available to all interested persons who request it. See Section 45-3-706.
Section 45-3-715 lists some, but not all, of the specific transactions personal representatives are
authorized to carry out. The personal representative must also pay valid creditor‘s claims, pay
decedent‘s federal and state income and estate taxes, pay the New Mexico family and personal
property allowances due (if any), prepare an accounting, and distribute the estate assets properly.
The personal representative must follow the provisions of the will, if any, or intestate laws, if no
will exists.
It is not the probate court’s job to monitor the personal representative’s acts. If this type of
monitoring is needed, the estate can be a supervised administration, which only the district
court can oversee in a formal supervised proceeding.
3.2 Special Administrators
Sometimes a special administrator needs to be appointed before a general personal representative
can be appointed. Most often, special administrations are sought when a time-sensitive matter
needs immediate attention, such as releasing a body for burial or cremation, cleaning out an
apartment, protecting the estate assets, etc. Some attorneys will use a special administration as a
discovery tool to find out whether a will exists and what property the decedent had. The process
may also be used to force the personal representative to take action and open the probate. Finally,
someone might need to start a probate before all renunciations, consents, or other paperwork can
be obtained. This may also be useful when someone needs to open a probate for the sole purpose
of obtaining medical records and it would be difficult to obtain the consents of all the people
with priority for appointment.
The probate and district courts have jurisdiction to appoint special administrators to act on behalf
of an estate before a regular personal representative is appointed. The special administrator has
the duty to collect and manage the estate assets, to preserve them, to account for and deliver the
assets to the personal representative once the personal representative is appointed. Sections 45-3-
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614 through 618 discuss this topic. The do-it-yourself forms do not contain language for
requesting a special administrator and would need to be modified by the applicant.
When appointing a special administrator, the probate judge does not have to follow the priorities
for appointment that apply to personal representatives. Section 45-3-203(H). The special
administrator process should not be used to get around obtaining the consents of heirs with
equal priority for appointment. For example, suppose an intestate decedent has two sons. One
son does not wish to consent to the appointment of the other son as personal representative. The
judge should not appoint one son as a special administrator. Instead, send the parties to the
district court for a formal proceeding.
Special administrators appointed in an informal proceeding do not have the power to
distribute a decedent’s assets. See Section 45-3-616. The special administrator serves more as
a ―babysitter‖ for decedent‘s property, collecting and protecting the property until a personal
representative is appointed by the court. Special administrators appointed in formal proceedings
have more powers. To make it clear that the Special Administrator cannot distribute decedent‘s
assets, the order, a sample of which appears on the next page, should specifically state that the
special administrator cannot distribute the decedent‘s assets. The Letters of Special
Administration should also set out any restrictions on the powers granted to the special
administrator.
The length of time that a special administrator serves may vary depending upon the needs of the
decedent‘s estate and whether there is a delay in appointing a personal representative. For
example, it may take some time to obtain all necessary consents to a personal representative‘s
appointment. A special administrator can protect and manage the decedent‘s assets until the
personal representative is appointed.
Although not required, judges can choose to put a time limit or expiration date in the order of
appointment and Letters for the special administrator. Otherwise, the appointment of a special
administrator terminates upon the appointment of a general personal representative. Section 45-
3-618. The appointment of a special administrator is also subject to termination by resignation,
or upon removal for cause, as provided in Sections 45-3-608 through 45-3-611.
Practical Tip: If the applicant started a case with an Application for Appointment of Special
Administrator, the court can use that same case file and number to convert the case to a
regular probate and appointment of personal representative. The judge does not need to
assign a separate case number or collect an additional docket fee. The order appointing the
personal representative (often, but not always, the same person as the special administrator)
should terminate the special administrator‘s appointment and revoke their Letters.
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3.2.1 Sample Order for Informal Appointment of Special Administrator
STATE OF NEW MEXICO
IN THE PROBATE COURT
COUNTY OF ____________________
No.
IN THE MATTER OF THE ESTATE OF
________________, DECEASED
ORDER APPOINTING SPECIAL ADMINISTRATOR WITH LIMITED POWERS
Upon the application of ______________________, a person known to be interested in
this estate, for the appointment of a special administrator pending the appointment of a general
personal representative; date of death being confirmed by review of decedent‘s death certificate;
and upon good cause shown, the Court finds that a special administrator should be appointed.
Judges can enter relevant reason(s) above, for example:
five days have not elapsed since decedent’s death, but an immediate appointment
is necessary to arrange decedent’s burial/cremation; or,
all written consents to the appointment of personal representative have not yet
been obtained, but the appointment is necessary to preserve decedent’s estate;
or,
an appointment is necessary to secure decedent’s home or apartment; or,
any other reason that shows “good cause.”
IT IS, THEREFORE, ORDERED that ______________________ is hereby appointed
special administrator of the estate of ______________, deceased, to collect and manage the
assets of the estate, to preserve them, to account for and deliver such assets to the general
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personal representative, once he or she is appointed by the Court, and until further order of this
Court.
______________________ shall not have the full powers of a personal representative,
but shall have the power to:
[JUDGES MAY LIMIT OR MODIFY THIS LIST AS NEEDED]
1. access and secure the decedent‘s home;
2. search for and notify heirs of decedent;
3. locate and preserve, including storage, other assets of decedent;
4. access and handle decedent‘s mail;
5. pay decedent‘s debts, including but not limited to credit card debts, as they become due;
6. access decedent‘s bank accounts for the purpose of paying decedent‘s debts as they become
due;
7. communicate with the Social Security Administration about decedent‘s benefits and the
proper termination thereof;
8. communicate with taxing authorities, including, but not limited to, the Internal Revenue
Service and New Mexico Taxation and Revenue Department;
9. access and acquire copies of decedent‘s medical records from hospitals or other health care
institutions in accordance with HIPAA privacy regulations;
10. transfer title to decedent‘s vehicle with the New Mexico Department of Motor Vehicles; and
11. such other powers as may be necessary to preserve and protect decedent‘s estate.
______________________ shall not have the power to liquidate or distribute decedent‘s
assets. ______________________ shall keep and provide a full accounting of expenditures and
income of the estate to all interested persons.
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Optional, if needed: The Court shall treat ______________‘s Acceptance to serve as personal
representative as an Acceptance to serve as special administrator of the estate of
_______________.
The Court shall issue Letters of Special Administration to ___________ upon applicant‘s
acceptance of the office of special administrator.
THE HONORABLE _______________________
_____________________________________
______________ County Probate Judge
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3.2.2 Sample Letters of Special Administration
STATE OF NEW MEXICO
IN THE PROBATE COURT
_________________ COUNTY
IN THE MATTER OF THE ESTATE OF No.
______________________________, DECEASED.
LETTERS OF SPECIAL ADMINISTRATION
TO WHOM IT MAY CONCERN:
Notice is now given ___________________ has been appointed to serve as the special
administrator of the estate of ________________________, and has qualified as the decedent's
special administrator by filing with the court a statement of acceptance of the duties of that
office.
_________________ shall not have the full powers of a personal representative, but shall have
the power to:
Judges can list specific powers granted to the special administrator in the Order
Appointing the Special Administrator in this space.
________________________ shall not have the power to distribute decedent‘s assets, but shall
collect and manage the assets of the estate, preserve them, account for and deliver such assets to
the general personal representative, once he or she is appointed.
Issued this ____ day of _________________, 20___.
_________________________________
Clerk of the Probate Court
(Seal) by: _______________________________
Deputy Clerk
3-20
3.2.3 Sample Order for Informal Appointment of Special Administrator,
Medical Records Only
STATE OF NEW MEXICO
IN THE PROBATE COURT
COUNTY OF ____________________
No.
IN THE MATTER OF THE ESTATE OF
________________, DECEASED
ORDER APPOINTING SPECIAL ADMINISTRATOR WITH LIMITED POWERS
Upon the application of ______________________, a person known to be interested in
this estate, for the appointment of a special administrator pending the appointment of a general
personal representative; date of death being confirmed by review of decedent‘s death certificate;
and upon good cause shown, the Court finds that a special administrator should be appointed.
IT IS, THEREFORE, ORDERED that __________ is hereby appointed special
administrator of the estate of ___________, deceased. ____________ shall not have the full
powers of a personal representative, but shall have only the power to:
Access and acquire copies of decedent‘s medical records from hospitals, health care
providers, and other health care institutions or facilities that provided treatment of the
decedent prior to death and to be treated as a ―personal representative‖ in accordance
with HIPAA privacy regulations for the sole purpose of obtaining decedent‘s medical
records. [Judge can list specific health institution(s) if known.]
____________ shall not have the power to access, liquidate or distribute any other assets
of decedent.
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The Court shall treat __________‘s Acceptance to serve as personal representative as an
Acceptance to serve as special administrator of the estate of _____________. The Court shall
issue Letters of Special Administration to ___________ upon entry of this order.
THE HONORABLE __________________
_____________________________________
______________ County Probate Judge
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3.2.4 Sample Letters of Special Administration, Medical Records Only
STATE OF NEW MEXICO
IN THE PROBATE COURT
_________________ COUNTY
IN THE MATTER OF THE ESTATE OF No.
______________________________, DECEASED.
LETTERS OF SPECIAL ADMINISTRATION
TO WHOM IT MAY CONCERN:
Notice is now given ___________________ has been appointed to serve as the special
administrator of the estate of ________________________, and has qualified as the decedent's
special administrator by filing with the court a statement of acceptance of the duties of that
office.
_________________ shall not have the full powers of a personal representative, but shall have
the power to:
Access and acquire copies of decedent‘s medical records from hospitals, health care
providers, and other health care institutions or facilities that provided treatment of the
decedent prior to death and to be treated as a ―personal representative‖ in accordance
with HIPAA privacy regulations for the sole purpose of obtaining decedent‘s medical
records. [Judge can list specific health institution(s) if known.]
________________________ shall not have the power to distribute decedent‘s assets, but shall
collect and manage the assets of the estate, preserve them, account for and deliver such assets to
the general personal representative, once he or she is appointed.
Issued this ____ day of _________________, 20___.
_________________________________
Clerk of the Probate Court
(Seal) by: _______________________________
Deputy Clerk
4-1
CHAPTER 4
Probate Procedures
This chapter covers:
Docketing cases, including whether to docket, whether to sign the order, a docketing
checklist and sequestered cases.
Probate court forms.
Proof of death.
Format and handling of court pleadings.
Initial probate application, including required elements and common errors.
How to issue Letters Testamentary or Letters of Administration.
Checklist of informal probate and appointment pleadings.
4.1 Docketing Cases
4.1.1 To Docket or Not Docket a Case?
A case is docketed once the docket fee is paid and a case number is assigned. A probate court
case cannot be docketed until the $30 docket fee is submitted via cash, check, cashier‘s check or
money order. The probate judge, in limited circumstances, may waive the docket fee for reasons
of indigence. This option is rarely used.
Unless there is a substantive error in the initial application submitted by the personal
representative, cases should be docketed without delay. Substantive errors might include a copy
of a will, attempting to file a case in the wrong court, or a failure to fill out the verification on the
application. The New Mexico Court of Appeals has ruled that court clerks do not have the
jurisdiction to determine whether a case should be docketed.
In Ennis v. KMart Corporation, 131 N.M. 32 (Ct. App. 2001), a district court clerk refused to
docket the case due to an error in the caption, even though the jurisdictional elements contained
in the body of the case were correct. The statute of limitations on the case expired before an
amended complaint could be filed. The Court of Appeals upheld the trial court‘s finding that the
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clerk had erred in refusing to accept the complaint. The Appellate Court cited NMRA, Rule 1-
005(E) (which is now Rule 1-005(F)), which prohibits a court clerk from ―refusing to accept for
filing any paper presented for that purpose solely because it is not presented in proper form as
required by these rules or any local rules or practices…‖ It also cited federal case law that
removed from the clerk any discretion in the decision to accept a technically deficient pleading.
―The advisory committee noted that the removal of discretion was necessary because the
rejection of pleadings for technical violations or insufficiencies is ―not a suitable role for the
office of the clerk…..‖ Id. at 35. ―Instead the rule delegates to the trial court the task of
evaluating the sufficiency of the pleadings and grants to the trial court the discretion to determine
whether to permit a party to correct any defect or to order the pleading stricken….‖ Id. at 35.
Further, the case states,
We hold that, under Rule 1-005(E), a court clerk lacks the discretion to reject pleadings
for technical violations and that a pleading will be considered filed when delivered to the
clerk. It is then up to the trial court to decide whether to allow a party to correct any
deficiencies or strike the pleadings.
Based on the Ennis case, the judge or staff should evaluate a case initially presented to the court,
and if it is legally sufficient, should docket the case immediately. Court staff can use a checklist
to check for critical elements before docketing a case. The judge does not have to immediately
sign the order if consents are needed or additional heirs or devisees need to be listed, but
the case should be docketed.
A sample of a Probate Court Docketing Checklist is provided below. The checklist should
particularly help those judges who have the county clerk‘s office docket the probate cases before
the judge ever sees the case.
The checklist is based, in part, on the findings the judge is required to make under Sections 45-3-
302, -303 and -308 before entering a will into probate or granting an informal application for
probate. This checklist allows the staff to review the case for the required elements and to
identify any fatal flaws before accepting the applicant‘s docket fee. Standardizing the procedure
for review of cases prior to docketing leads to consistency, and ensures that all cases are treated
in an even-handed manner. It also expedites the process by identifying any issues that may cause
delays in the appointment of a personal representative.
To avoid delays, probate judges may want to have several standard orders to use for issues that
arise at the time the case is docketed, such as the need to obtain consents, provide the original
will, etc.
If the application contains the required substantive elements listed on the checklist, the case
should be docketed immediately and submitted to the judge for further review. If the case
has substantive problems (such as lack of a notarized verification) the case cannot be docketed.
Pro se applicants may handwrite necessary corrections on the forms, but some attorneys may
want to take the case back to the office to make necessary corrections before submitting the case
to the court.
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The position that a judge cannot review a case until it has been docketed is supported by Rule of
Civil Procedure for the District Courts 1-005(F) (there are also corresponding rules for the
Metropolitan and Magistrate Courts) which states in part,
―The clerk shall not refuse to accept for filing any paper presented for that purpose solely
because it is not presented in proper form as required by these rules or any local rules or
practices.‖
Once the case has been docketed, the case is properly before the court if the judge needs to
contact parties to the case prior to making any determinations or signing the order.
Practical Tips: If the three-year statute of limitation during which the probate case can be filed is about to
expire and if the application is verified and the docket fee paid, assign a file number to the
case immediately, regardless of substantive or technical errors!
Some pro se applicants will submit the Verified Statement of Personal Representative
(which closes the estate) at the same time they file the initial application. The court should
not file the Verified Statement until the probate matter is complete. Once the Verified
Statement if filed, the personal representative loses the authority to act on behalf of the
estate!
4.1.2 Just Because a Case is Docketed, Must the Judge Sign the Order?
Docketing the case immediately still allows the probate judge to ―…decline an application for
appointment of personal representative for any reason,‖ and provide a record of his or her
actions. See Sections 45-3-305, 45-3-309. The need to decline the application might arise if the
judge detects evidence of fraud, if all consents of those with equal priority to serve as personal
representative cannot be obtained, if the will is not original, or any other number of problems
that the judge identifies upon more careful review of the case.
Judges may find it useful to create a set of form orders that address common issues that delay the
appointment of a personal representative. The orders should address what action needs to be
done by the applicant to correct the issues. This helps move the case along and provides a record
of the reasons for any delays in the case.
Make sure a case is docketed before signing an order or before declining to accept it. A
judge has no power to take any action on a case until it is docketed. This also ensures that the
court has the decedent‘s will (even if the will is questionable) and other documents as part of the
record to transfer to the district court if necessary.
Once a case is docketed, a probate judge cannot sign the order appointing the personal
representative and/or admitting a will to probate until all of the substantive requirements
(findings) of a probate case are met. This means the judge may have to wait to sign the order
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until receiving the original will, all consents, or a death certificate or other proof of death (if the
court requires proof of death). Section 45-3-302 says that, ―Upon receipt of an application
requesting informal probate of a will, the probate or district court, upon making the findings
required by Section 45-3-303, shall issue a written statement of informal probate if at least one
hundred twenty hours have elapsed since the decedent‘s death.‖ The findings are listed in the
order that the judge signs. Section 45-3-307 contains similar language. These findings are
discussed in more detail later in this chapter.
4.1.3 Documents Filed with Court & Redaction of Sensitive Information
Judges should also consider which documents must be docketed and placed in the file. Once the
case is filed with the court, all pleadings properly submitted for filing should be docketed. Search
requests and cover letters usually do not need to be placed in the file. However, most
correspondence (including e-mail) that addresses issues concerning the case should be filed so
that there is a record of events pertaining to the progress of the case. If judges are not sure, they
might ask themselves, ―would this help someone understand what happened in this case, and
could this be important to the case in the future?‖ Correspondence that makes inflammatory,
criminal, or hateful accusations may necessitate transfer of the case to the district court for a
formal proceeding. Make sure that copies of these communications are sent to all parties
involved and included in the court file.
Due to restrictions on public records, the judge and staff should make sure that no sensitive or
protected medical information is included in the court file. Because of regulations restricting the
disclosure of social security numbers, the judge or staff should carefully review documents
submitted to the court for any social security numbers or other private information. The judge or
staff may need to redact, or black out, social security numbers, bank account numbers, or other
protected information. Some county clerks have computer software that redacts selected
information, and the clerks may offer useful information to judges about redaction methods.
When possible, the redaction should be done on a copy of the document, leaving intact all the
information contained in the original document. Never redact information on an original will.
It is good practice to make a second copy of the document after redacting the information to
make sure that the information cannot be read when held up to the light, or in cases where
correction fluid or tape is used, that it cannot be removed.
If an attorney or pro se party submits pleadings to the court that contain private information, the
judge or staff may want to ask them to resubmit the pleadings or ask them to redact the
information themselves. Protected information, public record and confidentiality issues are
discussed in detail in Section 4.3.2 below and in Chapter 6 of the manual.
(See the next page for a Docketing Checklist.)
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4.1.4 Docketing Checklist
PROBATE COURT DOCKETING CHECKLIST
Name of decedent
Applicant‘s name
Statement of applicant‘s relationship to decedent
Date of decedent‘s death and age at time of death
Statement of domicile is in __________ County OR
Decedent did not live in New Mexico, but owned property in ________ County and
30 days or more have elapsed since decedent ‗s death (Section 45-3-307(A))
Death Certificate has been submitted or will be submitted___________________
Information regarding domicile, marital status, date of death and age at time of death
matches information provided in Application or can be corrected
Spouse, children, heirs and devisees are listed (even if incomplete addresses)_
If there is a will, the date the will was executed
If a will is submitted, submitted will is original, not a copy
The heirs and devisees listed in the will match the heirs and devisees listed in the
application or information can and will be corrected
Demand for Notice box is checked or can be checked by court
Five days (120 hours) have elapsed since decedent‘s death (if not, case can be
docketed, but judge cannot sign order appointing PR until 120 hours after death)
No more than 3 years have elapsed since decedent‘s death; if there is no will and it
has been more than 3 years, application needs to contain a statement that he/she is
opening probate to confirm title to property
Probate Court has jurisdiction to act, and case does not involve determination of heirs,
missing heirs, trusts, formal probate (see Section 45-1-302)
Any required consents are attached or can be obtained
Application is signed by applicant or attorney
Application includes a notarized verification with applicant‘s signature
Docket fee is submitted or waived for indigence by the court (judge only)
If any of the above is NOT true, judges should not docket the case, but should
inform the attorney, runner, or pro se applicant of the problem.
If a case meets the above requirements, judges should docket the case even if it contains
any of the following technical errors:
Lack of conformity of form, such as margins, style, etc.
Technically deficient pleading
Wrong forms, intestate instead of testate or vice versa
Wrong court caption
Ages of minor heirs/devisees/children missing
Personal Representative failed to list self on application
Incomplete addresses for heirs/devisees, etc.
Expedite?
Issues?
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4.1.5 Sequestered Cases
Probate case files are public record, open to anyone to view. Occasionally, a probate case may
need to be sequestered (kept locked and confidential). This issue can arise in cases involving
domestic violence or other safety issues where the identity and location of a personal
representative or other interested party needs to be kept confidential. The person seeking to
sequester the case should provide a police report, court order, or other evidence of the danger of
revealing their identity. The judge must decide whether the safety of the person involved is more
important than the public‘s right to view the case file.
Once the probate judge is convinced that the case should be sequestered, only the following
information should appear on the docket sheet:
Docket Number
Date of Filing
Judge‘s Name
Payment of Docket Fee, if applicable
The statement, ―Case sequestered. May only be viewed pursuant to written court
order.‖
The names of the decedent, personal representative, and attorney, if any, should not appear
anywhere on the docket sheet or in the public record. The case file should be kept in a secure,
locked cabinet, drawer, or other location. The case file can only be viewed by someone with a
written court order from the probate court.
This issue arises rarely, and the sequestered status should be used sparingly, if at all.
4.2 Probate Court Forms
4.2.1 Pro Se (Do-It-Yourself) Probate Forms
The New Mexico Supreme Court approved do-it-yourself probate court forms for use by the
public without the assistance of an attorney. These forms are published as part of the New
Mexico Rules Annotated under Section 4B-001, et seq. Some attorneys also use these forms.
Copies of the do-it-yourself forms can be obtained:
As packets, sold by the probate courts for $5 each packet.
From the Internet, forms can be found at:
www.nmcourts.com (Click on Legal Forms, then Probate Court).
http://www.bernco.gov/probate-judges-office/ (click on ―Probate Forms,‖ then
click on NM Supreme Court Probate Forms).
From the New Mexico Rules Annotated, Volume 1, Probate Court Forms, Rules 4B.
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The probate forms must be downloaded individually. People often have problems with this. They
may appear at the probate court, having downloaded only the application. If the judge or staff
speaks with them before they download the forms, make sure the applicants know that they will
need the forms for the Application, Order, Acceptance and Letters. All four of these forms
should be filed at the beginning of the case.
In addition to the actual probate forms, the rules contain many useful instructions and procedures
that should aid applicants. It is helpful to explain the numbering process to people who inquire
about the process. That is, Form 4B-003 contains instructions; 4B-101 or 4B-102 is the initial
application. Make sure applicants understand that although the initial forms are what they need
to open the case, once they have been appointed, they will need to use additional forms for
notices, inventory, and to complete the probate process.
Judges may find it helpful to create a detailed checklist of what documents people need to submit
at each stage of the proceeding to save time and help people better understand the probate
process. When selling forms packets, it is helpful to put ―STOP‖ signs between the different
stages of the probate process to make sure that the proper forms are submitted at each stage of
the proceeding.
Because the probate court staff signs documents on behalf of the court, they cannot notarize
documents that applicants file with the court. If no one in the county offices notarizes
documents, make sure people are aware of this before they visit the court. Banks, investment
companies, office supply companies, and other businesses may provide notary services. Chapter
10 contains information about allowable notary fees.
Pro se parties often refer to the form number when asking questions. For clarity, ask them to
refer to the name of the form.
Make sure people are using the correct forms:
Testate Forms (for when there is a will).
Intestate Forms (for when there is no valid will).
Here is a list of the rules governing probate forms approved by the New Mexico Supreme Court:
4B-001 Probate court forms; short title; limited purpose of forms; cautions regarding use of these
forms.
4B-002 Probate definitions.
4B-003 General instructions for probate forms.
4B-011 General instructions for probates when there is no will.
4B-012 Explanation of forms and how to complete; specific steps if no will has been found.
4B-021 General instructions for probates when there is a will.
4B-022 Explanation of forms and how to complete; specific steps to probate a will.
4B-101 Application for informal appointment of personal representative (no will).
4B-102 Application for informal probate of will and for informal appointment of personal
representative (will).
4B-103 Order of informal appointment of personal representative (no will).
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4B-104 Order of informal probate of will and appointment of personal representative (will).
4B-105 Acceptance of appointment as personal representative (will) (no will).
4B-106 Letters of administration (no will).
4B-107 Letters testamentary (will).
4B-201 Notice of informal appointment of personal representative.
4B-202 Proof of notice.
4B-301 Notice to known creditors.
4B-302 Notice to creditors.
4B-401 Inventory.
4B-501 Accounting.
4B-502 Verified statement of the personal representative.
4B-503 Application for certificate of full administration.
4B-504 Certificate of full administration and release of property lien.
4B-601 Affidavit of poverty and indigency.
4B-602 Order allowing free process.
4.2.2 Other Probate Forms
Some attorneys may submit forms from old probate manuals, law seminar handouts or pleadings
based upon the requirements set out in the probate code. Any forms that meet the requirements
for informal probate or appointment proceedings in New Mexico may be accepted by the probate
court. Two sample application forms the probate judge may encounter are included near the end
of this chapter.
4.3 Proof of Death
4.3.1 How Does a Judge Know the Decedent has Died?
The judge has the following options:
The judge can take the applicants‘ word for it since they signed the application under
oath.
The judge can require proof of death, usually a death certificate or letter from the
Office of Medical Investigator (OMI).
If other evidence is unavailable (or the judge wants further information) the judge
may accept obituaries, funeral home documentation, etc. from the applicant.
Judges have the power to require a death certificates in all probate cases filed,
including cases submitted by attorneys and pro se applicants. Judges should be
consistent in their requirements to show that they are acting in a fair and impartial
manner.
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4.3.2 Death Certificates
Funeral service practitioners who assume custody of a dead body have responsibilities under the
law to (1) file the death certificate; (2) obtain the personal data from the next of kin or the best
qualified person or source available, and (3) obtain the medical certification of cause of death.
Section 24-14-20. Not all information is always accurate on the death certificate.
Although judges may review death certificates, Section 24-14-27A NMSA prohibits a person
from allowing the public to inspect the death certificate. It reads:
It is unlawful for any person to permit inspection of or to disclose information contained
in vital records or to copy or issue a copy of all or part of any record except as authorized
by law.
It is permissible for the probate judge to request and review the death certificate, but it should not
be included in the court file. The Bernalillo County Probate Court has removed previously filed
death certificates and replaced them with the Certificate of Review discussed below. The
removed original death certificates are stored in a locked cabinet, secure from public view.
Practical Tip: Section 24-14-29 sets fees that the New Mexico Vital Records Office can charge for
producing certified copies of birth and death certificates. The fee for each search of a vital
record to produce a certified copy of a death certificate shall be five dollars ($5.00) and
shall include one certified copy of the record, if available, Section 24-14-29C.
Section 14-8-9.1F states, ―Death certificates that have been recorded in the office of the county
clerk may be inspected, but shall not be copied, digitized or purchased by any third party unless
fifty years have elapsed after the date of death and the cause of death and any other medical
information contained on the death certificate is redacted, in addition to redaction of protected
personal identifier information. Death certificates and other vital records recorded in the office
of the county clerk are exempt from the restrictions contained in Subsection A of Section 24-14-
27 NMSA 1978. The act of recording a death certificate in the office of the county clerk is
considered a convenience; provided that no person shall be required to record a death certificate
in the office of the county clerk to effect change of title or interest in property.‖
Further, NMSA Section 57-12B-3D prohibits businesses from disclosing social security numbers
to the public. The statute reads:
D. A company acquiring or using social security numbers of consumers shall adopt
internal policies that:
(1) limit access to the social security numbers to those employees
authorized to have access to that information to perform their duties; and
(2) hold employees responsible if the social security numbers are
released to unauthorized persons.
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Although the probate courts are not technically a business, the New Mexico Administrative Code
(NMAC) contains similar provisions for probate case files. See specifically 1.17.230.804.E
1.17.230.801 PROBATE CASE FILE:
A. Program: probate matters
B. Maintenance system: numerical by docket number
C. Description: record of probate proceedings before the court. File may contain petition,
will, death certificate, notice to creditors, bonding documents, letters of administration, claims, proposed
distributions, settlements, orders of appointments, orders of distribution, correspondence, memoranda,
etc. File includes probate court case files forwarded from county clerk's office or probate judge.
D. Retention: permanent
E. Confidentiality: may contain materials covered by protective order or sealed materials
F. Nota bene: No probate case file shall be microphotographed without probate docket
sheet.
[1.17.230.801 NMAC - Rp 1.17.230.191 NMAC, 2/18/2003]
1.17.230.802-1.17.230.803 omitted
1.17.230.804 PROBATE DOCKET SHEET:
A. Program: probate matters
B. Maintenance system: chronological by date of filing
C. Description: record of documents and events in a probate case. Record may show clerk,
judge, court type, date filed, time filed, number of pages, case number, decedent's name, social security
number, date of death, attorney, waiver, judgment, court cost, etc.
D. Retention: until filed in probate case file
E. Confidentiality: Social security numbers shall not be released to the public per supreme court order 8000, dated April 5, 2001 [emphasis added], and federal Privacy Act
of 1974, 5 USC Section 552a note Section 7.
[1.17.230.804 NMAC - Rp 1.17.230.194 NMAC, 2/18/2003]
1.17.230.805 INDEX OF PROBATE DECEDENTS: A. Program: probate matters
B. Maintenance system: alphabetical by decedent‘s name
C. Description: yearly alphabetical listing by decedent‘s name cross-referencing to docket
number. Listing may show name of decedent, docket number, etc.
D. Retention: permanent
E. Nota bene: (1) Courts having automated systems that provide access by defendant name, are not required to
produce annual paper indexes. However, a five-year paper index shall be produced and forwarded to state
archives.
(2) Paper indexes produced prior to automation shall be microphotographed (imaged)
with a copy forwarded to state archives.
[1.17.230.805 NMAC - Rp 1.17.230.195 NMAC, 2/18/2003]
Because of above statutes and rules, the probate courts must maintain the confidentiality of death
certificates submitted to the court. The original death certificate (or Pending Letter from the
Office of the Medical Investigator) should be submitted to the court, but should not be filed in
the court record.
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Reviewing the death certificate is important to the probate judge in determining the decedent‘s
death, as well as decedent‘s domicile, marital status, date of death, whether five days have
passed since the death, etc. The probate judge reviews the death certificates in each case. The
judge fills out two copies of the ―Certificate Acknowledging Receipt and Review of Death
Certificate‖ form, filing one copy in the court record and giving the other copy, endorsed by the
court, to the attorney or applicant. Some attorneys familiar with the process submit their own
certificate. The death certificate is then returned to the attorney or applicant. The actual date of
death is no longer included in the certificate signed by the judge, although that date is required
on the initial application.
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STATE OF NEW MEXICO
IN THE PROBATE COURT
COUNTY OF ____________________
NO.
IN THE MATTER OF THE ESTATE OF
____________________, DECEASED
CERTIFICATE ACKNOWLEDGING RECEIPT AND
REVIEW OF DEATH CERTIFICATE
I, __________________, ________________ County Probate Judge, acknowledge
having reviewed the death certificate in the above-captioned probate action, having confirmed
the date of decedent‘s death listed on the application is correct, and having returned said death
certificate to the personal representative or attorney for the estate.
[In some cases, a death certificate is not available pending an investigation by the Office of the
Medical Investigator into the cause of decedent‘s death. In those cases judges can modify the
language to read: I, ___________, __________ County Probate Judge, acknowledge having
reviewed the Pending Letter from the Office of Medical Investigator in the above-captioned
probate action, having confirmed the date of decedent‘s death listed on the application is correct,
and having returned said Letter to the personal representative or attorney for the estate.]
WITNESS my hand and seal of the Probate Court on this ______ day of ______________,
20___.
THE HONORABLE ______________
(SEAL)
_________________________________
_____________ County Probate Judge
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FILED IN MY OFFICE THIS
(DATE WHEEL)
County Clerk’s Name
COUNTY CLERK
When the alleged deceased person is missing, only the district court has jurisdiction to hear the
case. Section 45-1-302A(2). Probate judges may be asked to declare a person dead. Probate
judges cannot accept these cases; only the district court has the power to declare someone dead.
See Section 45-1-107.
The death certificate contains information that is useful when reviewing the initial
application, such as the decedent’s:
Name.
Date of death and age at time of death (which must be included in the initial
application).
Marital status (such as, whether there was a deceased spouse).
Domicile.
Practical Tip: Make sure the date of death and date of birth on the death certificate matches the date of
death and age at time of death listed in the initial application.
4.4 Format and Handling of Court Pleadings
Estate papers (called pleadings), the original will, if any, and proper payment are presented
together to the court for review and appointment of the personal representative and/or probate of
the will, if any. The initial application must be signed by the applicant in the presence of a notary
public and should include an original death certificate, if required by the judge. Applicants must
submit complete, accurate, and truthful pleadings to the court.
If, for any reason, the court does not accept the estate, all payments and pleadings are returned to
the applicant. After a case is accepted for filing, a receipt should be given to the filing party for
all monies submitted to the court. After the court dockets the probate case, no refunds are
possible.
Each pleading should be presented in order with exact copies clipped behind the original.
Usually an original plus one to three copies are presented with each pleading filed throughout the
case. Extra copies of Letters Testamentary or Letters of Administration are often submitted. The
court keeps the original and returns endorsed copies to the filing party.
The original pleading is file-stamped in the upper right hand corner of the first page in
substantially the following manner:
4-14
ENDORSED FILED IN MY OFFICE THIS
(DATE WHEEL)
County Clerk’s Name
COUNTY CLERK
Some courts use a stamp with a ‗date wheel‘ that allows the date to be changed daily.
Copies of all pleadings are endorsed-stamped in the upper right hand corner of the first page in
substantially the following manner:
Unless specifically provided to the contrary in the Probate Code, or unless inconsistent with its
provisions, the Rules of Civil Procedure govern formal and informal proceedings under the code.
Section 45-1-304. The do-it-yourself probate court forms follow the Rules of Civil Procedure for
the district courts. Other forms and paperwork submitted by attorneys, applicants, or others
should follow the basic rules for the format of court pleadings.
HOWEVER, remember that technical errors and errors in the form of the pleadings are
not grounds to reject a case from being filed. Cases that meet the basic substantive
requirements listed on the Docketing Checklist discussed above should be docketed.
Form of papers.
Rule 1-100 of the Rules of Civil Procedure for the District Courts states that all pleadings and
papers should:
(1) be clearly legible;
(2) be printed on one side of the page;
(3) be on good quality white, 8 ½ by 11‖ paper;
(4) have left margin 1‖; top and bottom margins 1 1/2‖; right margin 1;‖
(5) have consecutive page numbers at the bottom;
(6) be stapled at the upper left hand corner;
(7) leave a space of 2 1/2‖ by 2 ½‖ on upper right-hand corner of the first page of each
pleading for the clerk‘s recording stamp;
(8) typed or printed by using at least a 12-point typeface; and
(9) be double-spaced, except for quotations and footnotes.
Pleadings and papers; captions.
Rule 1-008.1 of the Rules of Civil Procedure for the District Courts states that all pleadings and
papers shall have a caption or heading which includes the name of the court. According to Rule
1-008.1, for district courts the caption should read as follows:
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State of New Mexico
County of __________________
In the Probate Court
However, the pro se Probate Court forms list the caption as:
STATE OF NEW MEXICO
IN THE PROBATE COURT
____________ COUNTY
Pleadings shall also include the name of the parties, such as:
In the Matter of the Estate of
__________________(name of decedent), Deceased.
Finally, the caption should include a title that describes the cause of action such as – Application
for Informal Probate of Will and for Informal Appointment of Personal Representative.
Rule 1-011 of the Rules of Civil Procedure for the District Courts governs the signing of
pleadings, motions and other papers. When filing official documents in the courts, all pleadings
and others papers shall be signed by the applicant, or the attorney representing the applicant or
personal representative. If the applicant/party pro se submits the paperwork, he/she must include
the complete mailing address and telephone number under each original signature. If the attorney
submits the paperwork, then he or she must sign the pleading below the applicant‘s signature to
indicate that he or she represents the applicant. By doing this, if there are any questions, all
inquiries will go to the attorney representing the personal representative or the party pro se.
Practical Tip: Remember that the Supreme Court rules (i.e., the pro se probate forms) require the initial
Application, Acceptance and Verified Closing Statement to be signed and notarized.
The statutory docket fee to file for informal probate in the probate court is $30.00. Judges or staff
should not charge any other fee to file a probate.
Fees can be charged for copies and certifications. Probate court may charge $0.50 per page for
copies and $.50 per document certification. An authentication fee is $1.50 for each packet of
documents that is authenticated. However, judges should check with their county clerk‘s office
to verify the amount charged for photocopies, etc. Judges need to be consistent in the fees that
they charge and who gets charged for copies. Governmental agencies are generally exempt from
these fees. Depending on the county, probate courts may accept cash, checks, money orders,
cashier‘s checks, debit/credit cards, or online payments.
4-16
4.5 Initial Probate Application
Reviewing the accuracy and completeness of court pleadings is one of the probate judge‘s most
important duties. Once the judge determines that the initial application is correct and complete,
he or she can admit the will, if any, and sign the order opening the probate and appointing the
personal representative. Section 45-3-301, a key section of the Probate Code, outlines the
required contents of the initial informal probate or appointment application. The do-it-
yourself forms and other probate forms were created based on Section 45-3-301.
In a testate (with a valid will) case, the first pleading is called the “Application for Informal
Probate of Will and for Informal Appointment of Personal Representative.”
In an intestate (no valid will) case, the first pleading is called the “Application for Informal
Appointment of Personal Representative.”
Practical Tip: Applicants may ask to submit one probate application for two related decedents, such as a
husband and wife. Although this used to be done in earlier times, tracking two decedents in
one case is difficult. Problems also arise when the decedents died at different times,
sometimes years apart; or different laws apply due to the length of time since death; or
decedents have children from prior marriages, etc. Probate courts should require a separate
case for each decedent.
4.5.1 Required Elements
On the initial application, the probate judge should make sure the following elements are
present:
1. Is the court caption correct? It should read:
STATE OF NEW MEXICO
IN THE PROBATE COURT
______________ COUNTY (with correct county name filled in)
or similar language.
Sometimes the court captions on all the forms incorrectly say DISTRICT COURT.
2. Name of Decedent
Does decedent‘s name (in the caption and within the pleading) match the name on the
death certificate?
Sometimes lawyers who use forms from past clients inadvertently list the names from
the prior case.
4-17
The death certificate and/or pleadings may also indicate any AKAs used by the
decedent.
3. Applicant’s Statement of Interest in the Estate
The applicant is almost always the same person as the Personal Representative. The Personal
Representative (who will conduct the decedent‘s estate business once he/she is appointed by the
court), must obtain legal authority from the court before acting. Once the judge signs the order
and issues the Letters, the personal representative can proceed with estate business.
The applicant must state his/her name, the decedent‘s name, and the applicant‘s relationship to
the decedent (the reason he/she is qualified to apply to start the probate). The do-it-yourself
forms list several reasons, which the applicant can check off. They should only check off the first
thing that applies. Other forms may state these details in paragraph form.
4. Things for the Judge to Check re: Personal Representatives
If there is a will, is the personal representative who is applying named as first choice?
o If no, have proper renunciations/consents been filed? (For more details, see
information about Personal Representatives in Chapter 3.)
If no will, are there several people who have equal priority?
o If yes, have they all signed proper renunciations and concurrences?
o If not, have they at least signed the ―I consent to the appointment of the personal
representative listed above‖ section of the do-it-yourself forms?
o The do-it-yourself forms do not allow for this, but all persons with equal priority
can nominate a third party to serve as personal representative.
Is the personal representative with highest priority applying?
o If no, must go to formal probate, see Section 45-3-203(E).
5. Decedent’s Date of Death and Age at Time of Death
Both the date of decedent‘s death and decedent‘s age at death must be stated in the
application.
The death certificate is a way good to ―double check‖ this information (i.e., do the
date of death and age on death certificate match date of death and age listed in
application?).
6. Domicile
The county and state of domicile at the time of decedent‘s death must be listed in the application.
Does the death certificate say that the decedent was domiciled in your county?
Does domicile on the death certificate match the domicile stated in the application?
Does the will, if any, say that the decedent is domiciled in your county? (It's okay if
the will doesn‘t because judges can admit valid wills from other states, counties, or
countries.)
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Practical Tip: If the decedent was not domiciled in New Mexico, then a statement
showing venue is required. Section 45-3-301(A)(3).
7. List of Spouse, Children, Heirs and Devisees
The application must list decedent‘s spouse, children, heirs and devisees, together with their
complete address, city, state, and zip code. Ages of minor children should be listed but no other
ages are required. If the applicant is a spouse, child, heir or devisee of the decedent, then the
applicant must also list himself/herself.
Who are the Heirs?
Section 45-2-103 lists the priority of heirs to inherit an intestate estate. This statute also gives
guidance about which heirs must be listed in the initial application:
If decedent is married, decedent‘s spouse is an heir.
Decedent‘s children, by representation, include
o all of decedent‘s biological children, if any; and
o children adopted by decedent, if any.
If one or more of decedent‘s children have died, all children of the deceased child or
children are also heirs of the decedent's estate.
If the decedent had no spouse or children, decedent‘s parents are the heirs, if both
survive, or the surviving parent if only one survives.
If the decedent also has no surviving spouse, children, or parents, then decedent‘s
brothers and sisters are the heirs; (if one or more of decedent‘s siblings has died, the
children of the deceased sibling(s) are also heirs of the estate).
If the decedent has no children, parents or siblings, the decedent's grandparents are
the heirs--if the grandparents are deceased, their children (decedent's aunts and
uncles), are the heirs of the estate.
If the decedent has no children, parents, siblings, or grandparents, or descendants of
grandparents, then the children of decedent‘s deceased spouse or spouses may be the
heirs of the estate, See Section 45-2-103B and 45-2-103C.
If none of the above people exist or can be found, the estate ―escheats‖ to the state school fund
(Section 45-2-105). In cases where it is impossible for the probate judge to determine who the
heirs are, the case should be transferred to the district court for a formal proceeding.
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Practical Tips: Often the applicants (personal representatives) fail to name themselves, even if they are a
spouse, child, heir or devisee.
If the will leaves property to a trust, the trust/trustee should be listed in the application along
with the spouse, children, and devisees.
The names and complete addresses of the surviving spouse, children, heirs and devisees
must be listed in the application, along with the ages of any minor children. The heirs are
determined according to the above criteria.
For example, if the decedent had no spouse, but had children, the applicant lists the children (and
children of any deceased children) and stops. If the decedent had no spouse or children, the
applicant lists the parents, if any. If the applicant had no parents, then the applicant lists the next
level of heirs, and so on. All devisees (people or entities named as beneficiaries in a Will) must
also be listed, but not alternate devisees.
If the applicant does not know who or where some of the heirs are, he has a duty to perform a
reasonably diligent search for them. In New Mexico, any heir who fails to survive a decedent by
120 hours (5 days) is deemed to have died before the decedent. See Chapter 10 for more
information regarding missing heirs.
Important Notes: An individual who feloniously and intentionally kills a decedent is barred from inheriting
decedent‘s estate, even if included in decedent‘s will. Section 45-2-803(C).
An ex-spouse is also barred from inheriting decedent‘s estate, unless a court order or
contract states otherwise. Section 45-2-804(B). Exception: a decedent could execute a new
will after the divorce date, including the ex-spouse as a devisee. Remember the rule,
discussed in Chapter 3, in New Mexico is that if one spouse dies during the pendency of a
divorce, the divorce and related proceedings continue to the conclusion as if both parties
have survived. A case with this issue should be transferred to the district court for a formal
proceeding.
Other Possible Heirs?
Spouse from whom the decedent was separated—Yes
Divorced spouse—No (but terms of the divorce decree may stipulate otherwise)
Fiancée or Significant other—No
Adopted child—Yes
Children adopted by strangers—No
Children of the half blood—Yes
Children adopted by spouse of natural parent—Yes (see Sections 45-2-115 and 45-2-
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118)
Foster children—No
Biological children born outside of marriage—Yes
Children born after the death of a parent—Yes
Practical Tip: When people share only one parent in common, they are of the half-blood. For example,
Tom married Didi and had a son by that marriage. After Didi‘s death Tom married
Evangeline and had another son with her. The two sons are half-brothers. In New Mexico the
half-brothers would inherit from Tom‘s estate the same share they would inherit if they were
of the whole blood. See Section 45-2-107.
A child may inherit from the estate of a parent who refused to support them, but a parent who has
refused to support a child cannot inherit from the estate of that deceased child. See Section 45-2-
114 for details.
Some judges review decedents‘ obituaries to determine whether all of the decedent‘s heirs have
been listed on the initial application submitted to the court. The Code of Judicial Conduct, Rule
21-209C states, ―A judge shall not investigate facts in a matter independently, and shall consider
only the evidence presented and any facts that may properly be judicially noticed.‖ It is unknown
whether ―judicially noticed‖ would include obituaries. If a judge was concerned that an applicant
had not listed all of the heirs, the judge could order the applicant to submit the decedent‘s
obituary and to list all of the heirs before the judge would sign an order appointing a personal
representative. Rule 21-209, commentary [6] further states, ―The prohibition against a judge
investigating the facts in a matter extends to information available in all mediums, including
electronic.‖ appears to prohibit computer searches, as well as paper searches.
Judges will probably see the terms per stirpes (the share of each deceased child is divided among
his/her surviving descendants, see Section 45-2-709) or by representation (the shares of
deceased descendants are pooled and divided into equal shares based on number of surviving
descendants of deceased descendants on that level, see Section 45-2-106) when reviewing cases.
By Representation is the concept used in New Mexico when there is no will, but judges may
also see the term per stirpes used in a will.
Per Stirpes/By Representation Example: Bob died, leaving an estate of $300,000. He had no
surviving spouse. Bob had three children, two of whom are deceased. Child 1 is living and has 2
children; Child 2 had three children; Child 3 had one child.
Living Deceased Deceased
Child 1 Child 2 Child 3
o o o o o o
Under either concept, Child 1 inherits $100,000. Child 1's children inherit nothing because Child
1 is still alive.
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? Under per stirpes, Child 2's three children would split Child 2‘s $100,000, each receiving
$33,333.33. Child 3's child would receive Child 3‘s entire share of $100,000.
? Under by representation, the shares of Child 2 and Child 3 ($200,000) would be added
together and then split equally among their four children, each receiving $50,000.
Being able to identify the heirs is important because New Mexico law requires the heirs of
an estate to be listed in the application even if the heir is omitted from a will or specifically
disinherited. Personal Representatives of the Estate are also required to give decedent‘s spouse,
children, heirs, and devisees notice of their appointment within ten days of their appointment.
This is required so that heirs are informed about the probate and have an opportunity to challenge
the will or appointment of personal representative. If a will were proved to be invalid, the heirs
would inherit the estate.
Practical Tip: Probate courts do not have jurisdiction to preside over contested cases. If an heir decided to
challenge the informal probate filed in probate court, the judge would need to transfer the
case to district court (see Chapter 7 for information on transferring cases to the district court)
for a formal proceeding.
8. Check Information about Will, if any
Is it the original will or an authenticated copy probated in another jurisdiction
(Section 45-3-301(B)(1))?
o If no, must go to formal probate, see Section 45-3-402(A)(B).
Does date on will match date of will stated in application?
o Check date will is signed—sometimes they accidentally pick up notary‘s
expiration date listed at very end of will instead of date will was signed;
o Do not worry if notary‘s commission has expired by the time the judge sees the
will. As long as the notary‘s commission was current at the time the will was
signed, it is OK.
Sometimes the will is undated, has two different dates, or the date in the application is
wrong (an undated will is not invalid, but it makes it difficult to determine which is
the current will).
Is will signed by testator or someone in the testator‘s conscious presence and by the
testator‘s direction?
Did two witnesses also sign?
Is there language in will that says the witnesses and testator were all in each other‘s
presence and watched each other sign, as required by Section 45-2-502? If not, the
judge has the discretion to enter an order for a sworn statement or affidavit of any
person having knowledge of the circumstances of execution, whether or not the
person was a witness to the will. Section 45-3-303(C).
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Probate court staff should stamp all original wills that are admitted with a stamp that
says ―Approved and Duly Admitted to Probate this ____ day of _____________,
20__. __________________________ Probate Judge.‖ Other probate courts record
the original will in the county clerk‘s records after a case is filed, but this is not
recommended.
A will must be declared in the order to be valid by the probate or district court
(Section 45-3-102).
Probate judges may be asked to admit both a will and a codicil to probate. Since the codicil only
amends a prior will, the judge can amend the order of appointment to read, ―The will of the
decedent ___________, dated ___________, as amended by codicil dated ____________, is
informally probated;‖
Note: The application should contain several statements about the will, its being validly
executed, and that there is no evidence of revocation (see Section 45-3-301(B)).
What if the Will is Invalid?
Probate judges may be presented with wills that are not valid. Perhaps the will is was not
witnessed or only contains the signature of one witness. The judge can enter an order requesting
a sworn statement or affidavit from anyone who has knowledge of the circumstances of
execution, whether or not the person was a witness to the will. Section 45-3-303(C). If no further
evidence is submitted, the judge should include the will as an exhibit in the case file but not
admit it to probate. The judge should amend the intestate order appointing the personal
representative and state why the will is invalid and was not admitted to probate. Letters of
Administration should be issued. If a dispute arises over whether or not the will is valid, the
probate judge should transfer the case to the district court for a formal proceeding.
9. Additional Intestate Requirements
If no will exists, then the application must state, ―after the exercise of reasonable diligence, the
applicant is unaware of any unrevoked testamentary instrument relating to property having a
situs in New Mexico….‖ See Section 45-3-301(D)(1) What this means in English is, ―I looked
really hard and could not find a valid will.‖ The do-it-yourself forms say, ―I have looked
carefully and thoroughly for a will of the decedent and did not find one. I believe that the
decedent died without a will.‖
Intestate applications must also include (per Section 45-3-301(D)(2)):
The priority of the person whose appointment is sought; and
The names of any other person having a prior or equal right to the appointment.
10. Statement re: Other Personal Representatives
The application includes language identifying and indicating the address of any personal
representative of decedent appointed in New Mexico or elsewhere. Usually, there is not one, so
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the application will instead state ―No other personal representative has been appointed in New
Mexico or elsewhere‖ or similar language.
11. Demands for Notice
The application should state whether any demands for notice of the probate have been received
or filed. While the forms currently say that the applicant checked with the district court and the
probate court, probate courts do not accept demands for notice until a case is opened. But the
district court can accept a demand before a probate is filed. The applicant is required to check
with the district court before filing the initial application to ask whether any demands for notice
have been filed concerning the decedent. See Section 45-3-204. If the applicant has not checked
for demands for notice at the district court, the probate judge or staff can call the district court
and inquire if any demands for notice have been filed for the decedent. Some district court
employees are not familiar with this process. The judge or staff may need to inform the applicant
that his/her duty is fulfilled by inquiring about a demand for notice.
12. Time Limits
Have 120 hours (5 days) passed since decedent‘s death? If not, the judge must hold
the case until five days have elapsed, see Sections 45-3-302, 45-3-307(A). If an
emergency situation exists, the judge may appoint a Special Administrator to protect
the assets of the estate (see Chapter 3 for information on special administrations.)
If decedent is non-resident, court shall delay order of appointment for thirty
days, with limited exceptions, following the date of death (Section 45-3-307(A)).
Have more than 3 years elapsed since decedent‘s death?
o If ―yes,‖ the judge may have jurisdiction under Section 45-3-108(A)(4) in an
intestate proceeding;
o If ―yes,‖ and a will exists, applicant must proceed in district court in a formal
testacy proceeding
The Uniform Probate Code covers four types of probate cases:
1. Informal probate (a will is submitted).
2. Informal appointment (no will is submitted).
3. Formal testacy (a will is submitted).
4. Formal appointment (no will is submitted).
These four distinctive terms appear throughout the probate code. See Sections 45-3-108, 45-3-
301, 45-3-303, 45-3-308, 45-3-401, 45-3-414 as examples.
More than Three Years Since Decedent’s Death—Section 45-3-108
The general rule is that probate cases must be filed within three years of a decedent‘s death.
Section 45-3-108(A) contains some exceptions to the three-year rule. Section 45-3-108(A)(4)
gives probate courts jurisdiction to open an informal appointment in an intestate proceeding
more than three years after a decedent‘s death. This exception can only be used in the probate
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courts for intestate estates without a valid will. The personal representative has no right to
possess estate assets other than to confirm title to the appropriate successors. Confirming title
might include preparing a personal representative‘s deed to pass real property to the decedent‘s
heirs, changing the name on decedent‘s account to the names of the heirs, or obtaining medical
records. Paragraph 8 of Form 4B-101 of the do-it-yourself probate forms contains this option,
and the applicant would need to check the correct box in Paragraph 8 if more than three years
have passed since the decedent‘s death. Because more than three years have passed since the
decedent‘s death, the personal representative does not need to give creditors notice of the
proceeding.
The probate judge‘s authority is the same as for any other probate. The judge signs the order,
Form 4B-103, and can modify Paragraph 7 to read, ―It appears from the application that this
proceeding was commenced within the time limitations prescribed by the laws of the State of
New Mexico due to the exception listed in Section 45-3-108(A)(4), NMSA 1978, allowing the
personal representative to confirm title to the successors to an estate more than three years after a
decedent‘s death.‖ The court then issues Letters of Administration to the personal representative.
The Letters give the personal representative the power to transfer decedent‘s asset(s) to the
successors, i.e. the people, other than creditors, who are entitled to the property of the decedent.
See Section 45-1-201(A)(50). The Letters should mirror the language of 45-3-108(A)(4) stating
that ―the personal representative has no right to possess estate assets beyond that necessary to
confirm title in the successors to the estate and claims other than expenses of administration may
not be presented against the estate.‖
A ―formal testacy‖ or ―formal appointment‖ may be commenced more than three years after
death for certain purposes, but only the district courts have jurisdiction over formal cases. The
district court judge must decide whether to admit a will to probate more than three years after a
testator‘s death. Probate judges lack jurisdiction to make this determination since they are limited
to presiding over informal cases.
13. Ending Requests
At the end of the application, the applicant will ask the court for certain things:
To enter an order informally probating decedent‘s will, if a testate case;
To informally appoint the applicant as personal representative;
(usually) To allow the personal representative to serve without bond, in an
unsupervised administration (Note: the probate court does not have jurisdiction over
supervised probates);
To issue Letters Testamentary or Letters of Administration to the personal
representative.
Some catch-all phrase about ―any other relief as the court believes appropriate.‖
14. Verification (Section 45-3-301(G))
All applications must be verified! This means the applicant must state, under oath, that the
statements in the application are true to the best of his/her knowledge. The verification must be
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signed by the applicant in the presence of a notary public, who also signs and notarizes the
verification.
Note: The do-it-yourself forms only ask for the name of the applicant in the verification
section. Nevertheless, the verification should be signed by the applicant and not just include
a printed name.
Practical Tip: Probate judges cannot appoint a personal representative unless the application includes a
notarized verification!
4.5.2 Common Errors on Initial Application
Pro Se Applicant Errors
Using wrong set of forms.
Failure to list all heirs, including themselves.
Failure to submit all required consents.
Not understanding what information goes in the blanks, for example. Putting in ―son‖
where the decedent‘s name should go.
Listing wrong date of will in application.
Listing wrong age at time of death or incorrect date of death in the application.
Failure to include complete addresses (since personal representative has duty to give
notice of appointment to heirs within 10 days [Section 45-3-705], they need complete
addresses for all the heirs).
Failure to call district court and/or to check box re: demand for notice in application
(see Section 45-3-204).
Failure to sign application in presence of a notary public.
Filling out all paperwork, including the Verified Statement that closes the estate,
before they‘ve ever opened the estate.
Attorney Errors
Wrong court caption.
Wrong names in pleadings (using an old pleading and failing to update it completely.
Listing wrong date of will in application.
Failure to list all heirs with complete addresses.
Failure to ask for Letters Testamentary in testate case (due to error in standardized
probate form).
Omitting applicant‘s verification at end of application.
Failure to notarize verification of applicant.
Leaving out some of the elements required in application or order.
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Asking probate court to do something it lacks jurisdiction to do, such as determine
heirs.
Practical Tip: A judge should not make changes to the application. This must be done by the applicant or
the attorney, who should initial any handwritten changes that are made to the application.
The judge can make changes to the order before signing it, or can draft his or her own order.
4.6 Initial Probate Order
The probate judge must sign an order appointing the personal representative and admitting the
will, if any, to probate. The do-it-yourself forms packet contain orders, which are authorized in
Rules 4B-103 (no will) and 4B-104 (will). The judge cannot sign either of these orders until the
initial application is complete.
4.6.1 Testate Orders, Form 4B-104
Section 45-3-303 lists the findings that, based on the initial application, the order in a testate case
must include all of the following:
The application is complete.
The applicant made oath or affirmation that the statements made in the application are
true and correct to the best of his knowledge and belief (this is the verification,
discussed above).
The applicant is an interested person.
Jurisdiction is proper (Section 45-3-303 does not list this finding, but it is important
to include anyway).
Venue is proper.
The original will is in the possession of court and will be entered into probate.
Any notice required has been given (this has to do with the demand for notice, not the
Notice of Appointment that has to be given within 10 days of appointment).
The time limit for original probate has not expired and the probate is filed within the
time limits of the probate code.
Judges will also see language in the order that:
The applicant has priority to serve as personal representative; and
No other personal representative has been appointed in New Mexico or elsewhere.
At the end of the order the judge orders that:
The application is granted.
The will of decedent is informally probated.
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The applicant is informally appointed as personal representative.
Letters Testamentary will be issued to the personal representative upon qualification
and acceptance.
4.6.2 Intestate Orders, Form 4B-103
Section 45-3-308 lists findings that the order in intestate case must include all of the following:
The application is complete.
The applicant made oath or affirmation that the statements made in the application are
true and correct to the best of his knowledge and belief (this is the verification,
discussed above).
The applicant is an interested person.
Jurisdiction is proper (Section 45-3-308 does not list this finding, but it is important
to include anyway).
Venue is proper.
Applicant is unaware of any unrevoked last will and testament or other testamentary
instrument, and the request for the appointment does not relate to any will.
Any notice required has been given (this has to do with the demand for notice, not the
notice of appointment that has to be given within 10 days of appointment).
The time limit for original probate has not expired and the probate is filed within the
time limits of the probate code.
The applicant is an interested person.
The applicant has priority to serve as personal representative.
No other personal representative has been appointed in New Mexico or elsewhere (or
a finding that another personal representative has been appointed, in what state and
court, and the other case number).
Practical Tip: If it has been more than three years since a decedent‘s death and the estate is intestate, the
judge may want to amend Paragraph 7 of the order, Form 4B-103, to read ―It appears from
the application that this proceeding was commenced within the time limitations prescribed
by the laws of the State of New Mexico, due to the exception listed in Section 45-3-
108(A)(4), NMSA 1978, allowing the personal representative to confirm title to the
successors to an estate more than three years after a decedent‘s death.‖
At the end of the order the judge orders that:
the application is granted;
the applicant is informally appointed as personal representative;
Letters of Administration will be issued to the personal representative upon
qualification and acceptance.
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Note: Check judge‘s signature line on order (it should say Probate Court Judge, not District
Court Judge). Also, if an attorney is representing applicant, the attorney‘s signature, name and
complete address should appear on the order. Otherwise, the applicant should sign the order.
Practical Tip: A judge can make changes or amendments to an order submitted by an attorney or pro se
applicant, but some attorneys may prefer to "re-do" the order. If the order submitted does
not comply with the forms in Rules 4B-103 or 4B-104, the judge may draft his or her own
order. The judge may draft his or her own order if something needs to be added to the form
order. For example, if an order is appointing co-personal representatives, the judge may
state in the order that ―As co-personal representatives, the applicants are governed by
Section 45-3-717, NMSA 1978.‖
Remember that judges have the option not to sign the order appointing the personal
representative. Judges may decline an application ―for any reason.‖ Sections 45-3-305, 45-3-309.
The case must be docketed before the judge can sign an order declining to act. A proceeding
for appointment of a personal representative is concluded by an order making or declining the
appointment. Section 45-3-107.
If a case is docketed after meeting all of the criteria on the docketing checklist, and the judge
then discovers an irregularity in the paperwork, the judge can decline to make the appointment.
The order declining the appointment can include the reasons. Reasons might include 1) the
original will appears fraudulent and judge thinks a formal district court proceeding will provide
more scrutiny; 2) a second will has been presented to the court; 3) evidence of untrue statements;
4) wrong venue; 5) family members or others show up in court making allegations against the
proposed personal representative before the judge has appointed him or her; or 5) other situations
that makes the judge reluctant to proceed. Once a probate judge declines an application, the
parties can still proceed with a formal proceeding in the district court. Some district court judges
prefer that the probate judge list the reasons for the transfer to give the district court the history
of the case.
4.6.3 Other Orders Signed by the Judge
In addition to orders appointing a personal representative in a testate or intestate case, judges
may draft and sign other orders in a case. The judge may need to draft and sign an order that:
1. Directs the applicant to obtain more consents required by law.
2. Directs the applicant to list all of the decedent‘s heirs and/or devisees, as required by law.
3. Directs a person to submit the original of decedent‘s will to the court.
4. Directs a person to submit further proof of execution of a decedent‘s will in accordance
with Section 45-3-303(C).
5. Directs a person to submit proof of the decedent‘s death.
6. Appoints a special administrator (see Chapter 3).
7. Appoints a successor personal representative.
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8. Reopens an estate that has been closed.
9. States the court lacks jurisdiction to do something that has been requested, such as a
formal closing, resolve a creditor dispute, declare someone dead, appoint a guardian or
conservator, determine heirs, etc.
10. Transfers a probate court case to district court (see Chapter 7).
4.7 How to Issue Letters
The Letters Testamentary or Letters of Administration are the documents that give
Personal Representatives the authority to act on behalf of estates. New Mexico law states,
―…to acquire the powers and undertake the duties and liabilities of a personal representative of a
decedent, a person must be appointed by order of the district court or probate court, qualify and
be issued letters. Administration of an estate is commenced by the issuance of letters.‖ Section
45-3-103.
Letters can only be issued after:
The probate judge has signed an order admitting a will, if any, to probate and/or
appointing a Personal Representative; and,
The court has received an acceptance of appointment from the personal representative
(some people combine the Letters and the acceptance into one form, although for
purposes of e-filing, district courts are now requiring that the documents be separate).
See Sections 45-3-102, 45-3-103, 45-3-601. The probate forms approved by the New
Mexico Supreme Court require the acceptance to be signed by the personal
representative in the presence of a notary public, who then notarizes the acceptance.
Letters Testamentary are issued when there is a will.
Letters of Administration are issued if there is no will.
Personal representatives sometimes submit the incorrect Letters, for example, submitting Letters
of Administration for a testate estate. This mistake should not delay the issuance of the Letters.
Judges or their clerks can amend the Letters form to reflect the proper title or create their own
Letters for the personal representative, using Form 4B-106 or 4B-107. This is usually the better
option since some financial institutions refuse to accept Letters that have any typed or
handwritten changes on them.
Note: Make sure all the information on the Letters is correct---attorneys and others sometimes
submit Letters naming the deceased as the Personal Representative, or using names from a
completely different estate proceeding. The Court Clerk signature line should say ―Probate Court
Clerk,‖ or ―Clerk of the Probate Court,‖ not ―District Court Clerk.‖
After the order has been signed and an acceptance of appointment has been submitted, the
judge (or county clerk or deputy clerk):
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1. Signs and dates the Letters; when signed by a deputy clerk, all documents must
indicate the Letters are issued by himself/herself with the name of the county clerk;
i.e. county clerk‘s name, by (name of deputy clerk), deputy clerk (Section 34-7-24).
2. Puts the court seal the court is required to keep under Section 34-7-3, on the Letters
and on all copies submitted to the court.
3. "File" stamps the original Letters and files the original Letters with the other
pleadings submitted to the court.
4. "Endorsed-Filed" stamps each copy of the Letters and returns them to the applicant or
attorney who submitted them.
5. The personal representative or attorney may ask that the copies of the Letters be
certified, for which the judge or clerk can charge the allowed fees.
Practical Tip: Anyone, including financial institutions, can request certified copies of Letters. When a
party requests additional certified copies of Letters, the court clerk should certify Letters
that already include the "Endorsed-Filed" stamp or ―Filed‖ stamp in the upper right-hand
corner of the Letters. The ―Endorsed-Filed‖ stamp should appear on all copies of pleadings
(documents filed in the court case file) that are returned to applicants, attorneys or others.
Certifications are in addition to endorsements. Filed stamps and Endorsed-Filed stamps
are discussed in detail in Section 4.4 of this chapter.
4.7.1 How to Issue Updated Certified Letters
Personal representatives or attorneys often ask for “new” or "current Letters"(many
financial institutions require that the Letters be dated within 30-90 days of use) and will submit
new blank copies of the Letters. For example, the court first issued Letters when the original
order was signed on January 7, 2013. The personal representative appears at the court on March
4, 2013, seeking ―new Letters‖ with a current date. The court should not issue "new Letters"
if the original Letters are still in full force and effect. Instead the court should issue
certified copies of the original Letters by:
1. Reviewing the file or docket sheet to make sure that the personal representative still
has the authority to act on behalf of the estate (make sure that no verified closing
statement has been filed so that the estate is still open).
2. Making a copy or copies of the original Letters filed in the court file. Sometimes the
personal representative or attorney will bring in their copies of their ―Endorsed-Filed‖
Letters that were first issued by the court. The court can choose to make copies of
those Letters instead of the original Letters from the court file.
3. Stamping each copy of the Letters with a stamp that says that the copy is a true and
correct copy of the Letters filed with the court and that they are still in full force and
effect (see sample certification stamp below).
4. Filling in the current date as part of the certification stamp.
5. Signing the certification and stamping each certification with the court seal.
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I, _______________, County Clerk and Ex-
Officio Clerk of the Probate Court of
______________ County, hereby certify that
the foregoing is a true, correct and full copy
of the instrument herewith set out, remaining
in full force and effect, as appears of record
in my office.
Dated this ______ day ________________
(signature or name stamp of County Clerk)
______________County Clerk
By::(original signature of Deputy Clerk)
Deputy Clerk
The certification stamp for certified Letters should look something like this:
Probate court may charge $0.50 per page for copies and $.50 per document certification.
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FILED IN MY OFFICE THIS
(DATE WHEEL)
County Clerk’s Name
COUNTY CLERK
4.7.2 Sample Letters Testamentary—Original in Court File 4B-107
STATE OF NEW MEXICO
IN THE PROBATE COURT
County where filed COUNTY
IN THE MATTER OF THE ESTATE OF No. Probate Case #
Doris Decedent, DECEASED.
LETTERS TESTAMENTARY
(WILL)1
TO WHOM IT MAY CONCERN:
Notice is now given that Peter Personal Representative (name of personal
representative), has been appointed to serve as the personal representative of the estate of
Doris Decedent, and has qualified as the decedent's personal representative by filing with
the court a statement of acceptance of the duties of that office.
The personal representative has all of the powers and authorities provided by law
and specifically, by Section 45-3-715 NMSA 1978.
Issued this 23rd day of January, 2013.
Carla County Clerk Clerk of the Probate Court
[STAMP COURT SEAL]
By: David Deputy Clerk
Deputy Clerk
USE NOTE 1. See Section 45-3-103 NMSA 1978 and Section
45-3-601 NMSA 1978 for issuance of letters. [Approved, effective September 15, 2000.]
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ENDORSED FILED IN MY OFFICE THIS
(DATE WHEEL)
County Clerk’s Name
COUNTY CLERK
4.7.3 Sample Letters Testamentary—Returned to Personal Rep or Attorney 4B-107
STATE OF NEW MEXICO
IN THE PROBATE COURT
County where filed COUNTY
IN THE MATTER OF THE ESTATE OF No. Probate Case #
Doris Decedent, DECEASED.
LETTERS TESTAMENTARY
(WILL)1
TO WHOM IT MAY CONCERN:
Notice is now given that Peter Personal Representative (name of personal
representative), has been appointed to serve as the personal representative of the estate of
Doris Decedent, and has qualified as the decedent's personal representative by filing with
the court a statement of acceptance of the duties of that office.
The personal representative has all of the powers and authorities provided by law
and specifically, by Section 45-3-715 NMSA 1978.
Issued this 23rd day of January, 2013.
Carla County Clerk Clerk of the Probate Court
[STAMP COURT SEAL]
By: David Deputy Clerk
Deputy Clerk (can add court certification if needed, see Chapter 10 for details)
USE NOTE 1. See Section 45-3-103 NMSA 1978 and Section
45-3-601 NMSA 1978 for issuance of letters. [Approved, effective September 15, 2000.]
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4.8 Probate Case Checklist—Things to Watch For
1. Does the court caption say Probate Court and not District Court?
2. Does the name of the decedent match the name on the death certificate and will, if any?
3. Is the personal representative with highest priority to serve asking for appointment?
If there is a will, is the personal representative who is applying named as first choice?
o If no, have proper renunciations/consents been filed?
If no will, are there several people who have equal priority?
o If yes, have they all signed proper renunciations and concurrences?
o If not, have they signed the ―I consent to the appointment of the personal
representative listed above‖ section of the do-it-yourself forms?
4. Is decedent‘s date of death and age at time of death correct?
5. Was decedent domiciled in your county or own property in your county?
6. Are all people required to be listed, spouse, children, heirs and devisees, listed with
complete addresses? Ages of minor children should also be listed. If personal
representative is spouse, child, heir or devisee, he/she should list himself/herself.
7. If a will was submitted, is it original or an authenticated copy probated in another
jurisdiction?
o If no, must go to formal probate, see Section 45-3-402(A)(B).
Does date on will match date of will stated in application? (It is not required that a
will be dated, but a date can help distinguish which will is the most recent if an issue
arises.)
Is will signed by testator or someone in the testator‘s conscious presence and by the
testator‘s direction?
Did two witnesses also sign?
IF WILL IS VALID, ADMIT IT TO PROBATE (see Sec. 4.5.1, paragraph 8 for
details)
8. Has it been more than three years since decedent‘s death? If so, probate court only has
jurisdiction for intestate estates.
9. Is the application properly verified (signed by applicant in presence of notary public or
signed by attorney)?
If all of the above items are correct, the judge can sign the order appointing the personal
representative. If the judge does not like the order submitted by the applicant, he or she can draft
his or her own order, using Form 4B-103 or Form 4B-104.
Has personal representative submitted a signed, notarized Acceptance of Appointment, Form 4B-
105? If so, the judge or staff can issue Letters Testamentary (will) or Letters of
Administration (no will). See Section 4.7 for details about Letters.
After the judge signs the order and issues Letters, his/her responsibility in the case usually ends
unless a dispute arises. The personal representative or attorney often files other paperwork in the
case—notices, inventory, verified statement, but the judge does not usually sign further
paperwork unless updated Letters need to be issued or a successor personal representative needs
to be appointed. If a dispute arises, the judge should transfer the case to the district court for a
formal proceeding, using the information in Chapter 7 of the manual.
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4.9 Alternative Probate Application Forms
4.9.1 Sample Probate Application Form, Intestate (Commonly Used by
Attorneys)
STATE OF NEW MEXICO
COUNTY OF _______________
IN THE PROBATE COURT
IN THE MATTER OF THE ESTATE OF No. __________
______________________, DECEASED
APPLICATION FOR INFORMAL APPOINTMENT
OF PERSONAL REPRESENTATIVE
___________________, applicant, states:
1. Applicant is the ____________________ (statement of interest or relationship to
decedent) of decedent and is, therefore, a person interested in the settlement of the estate of
decedent, is not disqualified to serve as personal representative, and there are no other persons
having a prior or equal right to the appointment.
2. _______________ (name of decedent) died on ________________ (date of death),
at the age of _________ years. At death decedent was domiciled in _______________ (city),
______________ County, New Mexico thus giving rise to venue. The names and addresses of the
spouse, children, and heirs of the decedent, so far as known or ascertainable with reasonable
diligence by the applicant, are:
NAME ADDRESS RELATIONSHIP AGE
TO DECEDENT (if a Minor)
The decedent died intestate and left no devisees.
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3. No personal representative of the decedent has been appointed in New Mexico or
elsewhere.
4. Applicant has not received and is not aware of any demand for notice of any probate
or appointment proceeding concerning the decedent filed in New Mexico or elsewhere.
5. The time for informal appointment proceedings has not expired because three years
or less have passed since the decedent's death. [NOTE: If more than three years have passed, reason
why appointment is proper based on Section 45-3-108(A)(4) should be stated.]
6. After the exercise of reasonable diligence, applicant is unaware of any unrevoked
testamentary instrument relating to property having a situs in New Mexico under the laws of New
Mexico.
WHEREFORE, the applicant prays for appointment as personal representative of the estate,
without bond, in an unsupervised administration; that Letters of Administration be issued to
applicant, and for such other and further relief as may be proper.
_____________________________ (signature of Applicant)
Name of Applicant
Street Address
City/State/Zip
Phone Number
______________________ (signature of attorney, if any)
Attorney Name
Street Address
City/State/Zip
Phone Number
STATE OF NEW MEXICO )
) ss.
COUNTY OF ________________ )
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_____________ (name of Applicant), upon oath, states that all of the representations in the
application are true as far as applicant knows or is informed, and that such application is true,
accurate and complete to the best of applicant's knowledge and belief.
_____________________________ (signature of applicant)
Name of Applicant
Street Address
City/State/Zip
Phone Number
SUBSCRIBED AND SWORN TO before me this ________ day of __________________,
20__ by __________________ (name of applicant).
____________________________
NOTARY PUBLIC
My Commission expires:
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4.9.2 Sample Probate Application Form, Testate (Commonly Used by
Attorneys)
STATE OF NEW MEXICO
COUNTY OF _________________
IN THE PROBATE COURT
IN THE MATTER OF THE ESTATE OF No. __________
______________________, DECEASED
APPLICATION FOR INFORMAL PROBATE OF WILL
AND FOR INFORMAL APPOINTMENT OF PERSONAL REPRESENTATIVE
___________, applicant, states:
1. Applicant is the ________ (statement of interest or relationship to decedent) of
decedent and is, therefore, a person interested in the settlement of the estate of decedent.
2. _______________ (name of decedent) died on ________________ (date of death),
at the age of _________ years. At death decedent was domiciled in _______________ (city),
______________ County, New Mexico thus giving rise to venue. The names and addresses of the
spouse, children, heirs, and devisees of the decedent, so far as known or ascertainable with
reasonable diligence by the applicant are:
NAME ADDRESS RELATIONSHIP AGE
TO DECEDENT (if a Minor)
3. No personal representative of the decedent has been appointed in New Mexico or
elsewhere.
4. Applicant has not received and is not aware of any demand for notice of any probate
or appointment proceeding concerning the decedent filed in New Mexico or elsewhere. 5.
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The original of decedent's last will and testament executed on _________ (date will was
signed) is filed with this application.
6. The applicant believes the will to have been validly executed.
7. After the exercise of reasonable diligence, applicant is unaware of any instrument
revoking the will, and the applicant believes that the instrument that is the subject of this
application is the decedent's last will.
8. The time for informal appointment proceedings has not expired because three years
or less have passed since the decedent's death. [NOTE: If more than three years have passed, reason
why appointment is proper based on Section 45-3-108(A)(4) should be stated.]
9. The applicant is nominated in the last will of the decedent as personal representative
without bond, is not disqualified to serve as personal representative of the decedent, and is therefore
entitled to be appointed personal representative
WHEREFORE, the applicant prays that the will be informally probated; applicant be
informally appointed personal representative of the estate, without bond, in an unsupervised
administration; that Letters Testamentary be issued to applicant; and for such other and further relief
as may be proper.
_____________________________ (signature of applicant)
Name of Applicant
Street Address
City/State/Zip
Phone Number
______________________ (signature of attorney, if any)
Attorney Name
Street Address
City/State/Zip
Phone Number
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STATE OF NEW MEXICO )
) ss.
COUNTY OF ________________ )
_____________ (name of applicant), upon oath, states that all of the representations in the
application are true as far as applicant knows or is informed, and that such application is true,
accurate, and complete to the best of applicant's knowledge and belief.
_____________________________ (signature of applicant)
Name of Applicant
Street Address
City/State/Zip
Phone Number
SUBSCRIBED AND SWORN TO before me this ________ day of __________________,
20___ by __________________ (name of applicant).
____________________________
NOTARY PUBLIC
My Commission expires:
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4.10 Checklist of Informal Probate and Appointment Pleadings (open and close informally; can file informal proceedings in probate court or district court)
Informal Probate (testate)
4B-102. Application for Informal Probate of Will
and for Informal Appointment of Personal
Representative, Section 45-3-301 (must attach
original will)
4B-104. Order for Informal Probate of Will and for
Informal Appointment of Personal Representative,
Section 45-3-303, -308
4B-107. Letters Testamentary and
4B-105. Acceptance, Section 45-3-103, -601
4B-201. Notice of Informal Probate of Will and
Appointment of Personal Representative (within
ten days of Personal Representative's
appointment), Section 45-3-306, -705; see also
Section 45-1-401
4B-202. Proof of Notice (notarized), Section 45-1-
401C
4B-301. Notice to Known Creditors (within three
months of Personal Representative's appointment),
Section 45-3-801***
4B-302. Notice to Creditors (published)
4B-401. Inventory and Appraisal (Personal
Representative must prepare within three months
of appointment; must give to any interested person
who requests it; may file with court, not required),
Section 45-3-706
4B-501. Accounting, Section 45-3-1003(A)(3)
4B-502. Verified Statement of Personal
Representative,
Section 45-3-1003
4B-503. Application for Certificate of Full
Administration, Section 45-3-1007, optional, must
wait one year after Verified Statement is filed to
apply for this
4B-504. Certificate of Full Administration
4B-601. Affidavit of poverty and indigency
4B-602. Order Allowing Free Process (rare)
Informal Appointment (intestate)
4B-101. Application for Informal Appointment of
Personal Representative, Section 45-3-301
4B-103. Order for Informal Appointment of
Personal Representative, Section 45-3-303, -308
4B-106. Letters of Administration and
4B-105. Acceptance, Section 45-3-103, -601
4B-201. Notice of Informal Appointment of
Personal Representative (within ten days of
Personal Representative's appointment), Section
45-3-306, -705; see also Section 45-1-401
4B-202. Proof of Notice (notarized), Section 45-1-
401C
4B-301. Notice to Known Creditors (within three
months of Personal Representative's appointment),
Section 45-3-801***
4B-302. Notice to Creditors (published)
4B-401. Inventory and Appraisal (Personal
Representative must prepare within three months
of appointment; must give to any interested person
who requests it; may file with court, not required),
Section 45-3-706
4B-501. Accounting, Section 45-3-1003(A)(3)
4B-502. Verified Statement of Personal
Representative,
Section 45-3-1003
4B-503. Application for Certificate of Full
Administration, Section 45-3-1007, optional, must
wait one year after Verified Statement is filed to
apply for this
4B-504. Certificate of Full Administration
4B-601. Affidavit of poverty and indigency
4B-602. Order Allowing Free Process (rare)
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*** Creditor then has two months to present claims, Section 45-3-801. Personal representative then has
60 days to allow or disallow creditor's claim. Silence (failure to disallow within 60 days) =
allowance!!! Section 45-3-806; creditor has 60 days to file request for allowance after claim is
disallowed, Section 45-3-804.
Important Note: Creditors‘ claims are discussed in more detail in Chapter 10 of this manual.
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CHAPTER 5
Closing the Estate
This chapter covers:
Options for closing the estate in probate court.
Certificate of full administration from the court.
Formal closing of the estate.
Newly discovered property.
Reopening old cases due to mistake or inadvertence.
5.1 Options for Closing the Estate in Probate Court
Once the personal representative has performed all duties required under the probate code and
done everything necessary to administer the estate, the personal representative can close the
estate.
In the probate court this can be accomplished in one of two ways.
5.1.1 Verified Statement
The Personal Representative files a verified statement pursuant to Section 45-3-1003 stating that:
He or she has determined that the time for presentation of creditors‘ claims has
expired.
He or she has fully administered the estate of the decedent by:
o making payment, settlement or other disposition of all claims presented; and
o paid all expenses of administration and estate and death taxes, except as may be
specified in the statement.
He or she has distributed the assets of the estate to persons entitled.
If any claims remain unpaid, he or she has distributed the assets of the estate subject
to possible liability with the agreement of the distributees or other arrangements made
to accommodate outstanding liabilities.
He or she has sent a copy of the statement to:
o all distributees of the estate; and
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o all creditors and other claimants of whom the personal representative is aware
whose claims are neither paid nor barred.
He or she has furnished a full account in writing of their administration of the estate
to those distributees whose interests are affected thereby.
The Verified Statement must be signed by the personal representative under oath in the presence
of a notary public. Section 45-3-1003(A) says this can be done ―no earlier than three months
after the date of original appointment of a general personal representative for the estate.‖ If no
proceedings involving the personal representative are pending in district court one year after the
verified statement is filed, the appointment of the personal representative terminates.
Important Note: A Verified Statement should not be accepted for filing until at least three (3) months after
the original appointment of the personal representative. Section 45-3-1003(A). If the
Verified Statement is submitted in person, make sure the personal representative has
completed transfer of title to all property, both real and personal. Some title companies
inform people not to transfer property until after the estate is closed, but this is incorrect.
5.1.2 Summary Administration
If it appears from the inventory and appraisal that the value of the estate does not exceed
expenses and applicable allowances, the personal representative may, without notice to creditors,
immediately disburse the assets of the estate and file a closing statement pursuant to Sections 45-
3-1203 and 45-3-1204 that states the following:
To the best of their knowledge, the value of the entire estate, less liens and
encumbrances, did not exceed:
o the family allowance;
o personal property allowance;
o costs and expenses of administration; and
o reasonable and necessary medical and hospital expenses of last illness of the
decedent; and reasonable funeral expenses.
The personal representative has fully administered the estate by disbursing and
distributing it to the persons entitled thereto.
The personal representative has sent a copy of the closing statement to all distributees
of the estate and to all creditors or other claimants of whom he is aware whose claims
are neither paid nor barred.
The personal representative has furnished a full account in writing of his
administration to all distributees whose interests are affected.
If no proceedings involving the personal representative are pending in district court one year
after the verified statement (or statement of summary administration) is filed, the appointment of
the personal representative terminates. Section 45-3-1003B.
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Practical Tip: The personal representative must have completed all estate tasks, including filing
decedent‘s income taxes and selling or transferring any real property belonging to decedent,
before the estate can be closed. Once the personal representative files a Verified
Statement, he or she loses the authority to act on behalf of the estate. Nevertheless,
many personal representatives attempt to file the Verified Statement before they have
completed all estate tasks. For example, the personal representative comes in, files the
Verified Statement, and then asks, ―Now can I sell the house?‖ Without giving legal advice,
when explaining the use of the pro se forms, the judge or staff should carefully point out
that the Verified Statement should not be filed until all estate business is complete,
including transferring all assets of the estate to the appropriate person(s).
Title companies and other entities may tell people they need to close the probate before they
can transfer title to real property. This is incorrect. Once a personal representative closes
the estate, he/she no longer has the legal authority to act on behalf of the estate!
5.2 Certificate of Full Administration from the Court
The personal representative of the estate may submit to the court an Application for Certificate
of Full Administration one year or more after filing the Verified Statement or Statement of
Summary Administration. The probate judge can sign the Certificate of Full Administration one
year after the Verified Statement was filed. Sections 45-3-1003(B), 45-3-1007.
The Certificate of Full Administration releases any liens on property posted by the personal
representative in lieu of bond, but does not preclude any action against the personal
representative. See Section 45-3-1007. In reality, this is more of a formality, since a bond is
usually not required of the personal representative in the probate court. The case is considered
closed whether the court issues this Certificate or not. But some people prefer to have an actual
order closing the case. These two forms are optional; personal representatives may choose not to
file them at all.
5.3 Formal Closing
Informal appointments and probate proceedings may be closed in the district court in formal
proceedings. See Sections 45-3-1001 and 45-3-1002; however probate courts do not have
jurisdiction over formal closings. If an estate requires a formal closing, the parties must
transfer the case to the district court.
The Personal Representative may petition the district court for a formal closing at any
time after the time for the presentation of claims which arose prior to the death of the
decedent has expired.
A devisee or other interested person may also petition the district court for a formal
closing one year after the appointment of the original personal representative.
5-4
The petition may request that the district court compel or approve a final account.
The district court may make other determinations as to heirship and distribution of the
estate.
In formal proceedings, which require notice and a hearing before the order is signed, the
Personal Representative can be discharged immediately after determination of these matters.
This is one reason why some attorneys choose to open a probate in an informal proceeding and
then go to the district court for a formal closing.
Practical Tip: Remember that if a personal representative or attorney submits formal closing papers, such
as a Petition and Order for Complete Settlement of Estate, probate judges do not have
jurisdiction to hear or sign the order. The judge or staff may direct the personal
representative or attorney to Form 4B-502, which is the form to use to close an informal
proceeding or direct the attorney to transfer the case to the district court for a formal
closing.
5.4 Estate Never Closed
Nothing in the probate code requires that the estate be closed. Many estates are never closed.
Sometimes, the personal representative (or his/her attorney) files the initial paperwork and then
never files anything else. In these cases, the personal representative retains the authority to act on
behalf of the estate indefinitely but also remains liable for his actions as personal representative
of the estate.
The Rules of Civil Procedure, Rule 1-041 governs the dismissal of actions filed in courts. Some
district court judges close civil cases on their own motions, either to clear their dockets or for
statistical purposes. Rule 1-041 does not apply to probate cases. Rule 1-041F(3).
As a practical matter, probate court files must be retained indefinitely, even if they are closed.
Keeping a case open can be useful if it is discovered that some piece of property was not
transferred (see additional discussion below). If an asset was part of the original estate (that is, if
the item of property that wasn‘t transferred was listed on the original inventory), a closed case
can be reopened in the probate court. If the case has been closed and then a new asset of the
estate that needs to be transferred is discovered, the case would need to be reopened in the
district court. Section 45-3-1008.
Practical Tip: Probate judges CANNOT close cases on their own motions. Rule 1-041F(3).
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5.5 Newly Discovered Property
On occasion, years after a probate case is closed, someone will discover that decedent owned
other property that was not included as part of the original probate. If it has been more than one
year since the verified closing statement has been filed, a new case will have to be filed in the
district court. If this property is discovered after an estate is settled and the personal
representative discharged, only the district court has jurisdiction to appoint the original
personal representative or a successor personal representative to administer the
subsequently discovered property. Section 45-3-1008.
Example 1: A decedent who died in 1982 owned six lots of real estate. A case was opened in the
probate court in 1982, and new deeds conveying the six lots to the decedent‘s heirs were created
and recorded by the personal representative. The case was closed in 1983. A seventh lot titled in
the decedent‘s sole name is discovered in 2013.
Answer: Because the estate was closed more than a year ago and because the seventh lot is
―other property of the estate…discovered after an estate has been settled and the personal
representative discharged…,‖ ―any interested person‖ may file a case in the district court to
administer the newly discovered lot. Section 45-3-1008.
Example 2: A decedent who died in 1982 owned six lots of real estate. A case was opened in the
probate court in 1982, and new deeds conveying the six lots to the decedent‘s heirs were created
and recorded by the personal representative. No verified closing statement was ever filed in the
probate court. A seventh lot titled in the decedent‘s sole name is discovered in 2013.
Answer: Because the estate was never closed, the probate court may issue new certified Letters
with a current date to the original personal representative if he or she is still alive and willing to
serve. If the original personal representative is unable to serve, the probate judge could sign an
order appointing a successor personal representative and issue certified Letters with a current
date to the successor personal representative. Before doing so, the judge should make sure the
successor personal representative has the highest priority for appointment and that all required
consents have been filed with the court.
5.6 Reopening Old Cases for Mistake or Inadvertence
A different scenario might occur if property was included in the original probate, but for some
reason, proper title was not transferred or another mistake occurred. In that instance, an applicant
can ask the court to reopen the old case and reappoint a former personal representative or appoint
a successor personal representative to fix the mistake. The pleadings submitted to the court must
indicate this information.
Example 1: Mr. Z died in 1971. A probate was opened in probate court. An inventory of Mr. Z‘s
property was prepared and filed with the court. The personal representative failed to complete a
personal representative‘s deed for one lot listed on the inventory. The estate was closed. Thirty
years later, when the property is about to be sold, the title company discovers that clear title was
never passed to the lot. Can this case be reopened?
5-6
Answer: Yes, if proper pleadings are submitted. A docket fee is not required, but the judge must
sign an order reopening the previously filed case and new Letters must be issued The personal
representative will then have legal authority to complete the personal representative‘s deed and
clear the title to the lot.
Example 2: Ms. X died in 1981. A probate was opened in probate court. An inventory of Ms.
X‘s property was prepared and filed with the court, but failed to include Lot 47, which the
personal representative did not know about. The estate was closed. Twenty years later, when the
property is about to be sold, the title company discovers that clear title was never passed to Lot
47. Can this case be reopened?
Answer: No, Lot 47 is ―newly discovered property‖ and the case must be filed in district court,
according to Section 45-3-1008, discussed in the previous section. (This same result could also
apply to personal property such as newly discovered stocks, bonds, or bank accounts.)
Example 3: Ms. Y died in 2009. A probate was opened in probate court. No inventory was filed
with the court. The estate was never officially closed. Four years later, a certificate of deposit is
discovered at a local bank. Can this case be reopened?
Answer: The judge does not need to reopen the case. Because it was never closed, the personal
representative, if still living, continues to have authority to act. If a successor personal
representative is needed, additional paperwork must be filed. The court should issue certified
Letters with a current date showing the personal representative still has authority to act.
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CHAPTER 6
Records, Fees and Reporting
This chapter covers:
Docket sheets and index.
Court costs and fees.
Retention and public record requirements for storing cases.
Inspection of Public Records Act (IPRA) requirements.
Rule 1-079 NMRA re: public inspection of court records.
Reports to district court.
6.1 Docket Sheets and Index
Most of the docketing information in a probate case is required by statute. Although judges may
not actually deal with this part of the probate process, they should be aware of the requirements.
Section 45-1-305A states that "…the clerk of the probate court shall keep a record for each
decedent…. and shall establish and maintain a system for indexing, filing and recording that
is sufficient to enable users of the records to obtain adequate information.” See Chapter 14,
Selected New Mexico Statutes, for full text of Section 45-1-305.
Section 34-7-20 states that the county clerk shall keep a record or docket additional to the other
records required by law, showing the following:
A. The name of every decedent whose estate is administered and the date of his death;
B. The names of all the heirs, devisees and surviving spouse of the decedent and their
ages and places of residence, so far as can be ascertained, and;
C. A note of every sale of real estate made under order of the court with a reference to the
volume and page of the court record where a complete record thereof may be found.
The Docket Sheet sets out some of this required information, along with other pertinent
information about the probate case that can be accessed without having to look at the file.
A probate court docket sheet should contain the following information:
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Docket Number
Filing Date
Name of Deceased
Date of Death
Attorney for the Estate (complete name address and telephone number)
Docket Fee Paid
The title and date of all pleadings filed with the court (and microfilm reel # if
applicable)
The entry for the application also sets out the name, address and telephone number of the
applicant (the application itself contains the required information about the spouse, children,
heirs and devisees--but the Probate Code only requires the ages of minor children)
Probate court can also maintains a monthly Daily Worksheet of pleadings filed with the court
that sets out what pleadings were filed with the court, on what date and in which case. A copy of
that worksheet is included in its monthly report to the district court.
The Index allows judges and clerks to search for probates by name, date of filing, etc., so
that they can easily access the files when someone does not have a case number.
Note: In some counties, the probate pleadings are recorded in the county clerk's office. Real
Estate transactions (Personal Representative Deeds) need to be recorded with the County Clerk's
office. It is helpful for the Personal Representative to file a copy of the deed with the probate
court, but not required.
6.2 Court Costs and Fees
The current probate court filing fee (or docket fee) is Thirty Dollars ($30.00) and is set by
statute (Section 34-7-14).
The statewide association of New Mexico probate judges has agreed to charge a flat fee of Five
Dollars ($5.00) for the Probate Court Form Packets so that all the probate courts charge the same
fee for the forms.
Section 34-7-15 sets out allowable fees for other costs—historically, the probate court's fees
were tied to the county clerk's fees. But the county clerk changed the fees charged for copies, etc.
to the statutory maximum allowed for public records. Those changes had to be approved by the
county commission. However, the fees probate courts are allowed to charge appear in a separate
statutory category. The charges allowed for probate courts are:
Copies--$0.50 per page, NMSA 1978, Section 34-7-15 (actually says ten cents ($0.10)
per folio of 100 words).
Certifications--$0.50 per document certified, NMSA 1978, Section 34-7-15.
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Authentications--$1.50 per authentication (this usually has several documents attached,
but is only one fee), NMSA 1978, Section 34-7-15 (is equivalent to 3 certificates and
seals authenticating a document (or group of documents) as (a) true and correct
copy/copies).
6.3 Retention and Public Record Requirements for Storing
Cases
Chapter 14 NMSA covers the preservation, recording and retention of records, as well as the
inspection of public records. Judges should be aware of the procedures their county has in place
for handling these matters, what changes need to be made, if any, and the correct procedure for
doing so.
The state regulation that covers retention of probate court records is New Mexico
Administrative Code (NMAC) Section 1.19.3.203.
The Compliance Guide for the Inspection of Public Records Act (Sections 14-2-1 through 14-2-
12 and Sections 14-3-1 through 14-3-25) is available online from the Attorney General‘s website
at :
http://www.nmag.gov/consumer/publications/inspectionofpublicrecordsactcomplianceguide2009
The Attorney General‘s office also provides periodic presentations throughout the state that
address these regulations.
6.3.1 Storage of Old or Closed Files
Probate court case files are perpetual, meaning they need to be retained forever. Case records
cannot be destroyed. Some counties may store old case files "off site" away from the court, but
staff needs to be able to access the files or copies of them in some manner.
There are statutory restrictions on how far files can be taken from the court. Section 34-7-7
states, ―The archives of said offices shall be under the charge of the clerks of said probate courts,
and said clerks are prohibited from taking from said offices any document or book pertaining to
said offices beyond six miles from said offices.‖ Some probate courts receive quite a few
requests for documents from very old (early 1900s) files, so court staff needs need access to the
files, even after the files are closed and even if the files are stored off-site.
6.3.2 Microfilm
Courts should have a "backup" copy of everything filed with the court. Older cases may have
been backed up on microfilm as they were filed with the court. This was cumbersome, because
the court had to search through several rolls of microfilm to find the contents of one file. Some
probate courts now digitally scan all documents, but because microfilm is still considered the
most archivally stable medium, the digital files must then be converted to microfilm. There are
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other technologies available, but be sure that any method chosen meets state requirements. The
authorization and standards for reproducing documents is found in Section 14-3-15.
The Commission of Public Records is the governing body of the State Records Center and
Archives, which can provide guidance on how to create archivally appropriate backups. Access
the State Records Center and Archives online at http://www.nmcpr.state.nm.us/index.htm. The
mailing address is:
New Mexico State Records Center and Archives
1205 Camino Carlos Rey
Santa Fe, New Mexico 87507
The State Records and Archives phone number is (505) 476-7900. The State Records and
Archives division provides periodic workshops about record retention and other issues.
Information about upcoming workshops is at:
http://www.nmcpr.state.nm.us/training/trainschedule.asp.
6.3.3 Securing Files
Courts should be especially careful about the storage of original wills. The original wills can be
stored in a separate, locked, and fireproof filing cabinet. A certified copy of the will would then
be placed in the court file. Court files should also be in a secure area, where no one other than
county staff has access to them when the judge or staff are not in the office. When members of
the public ask to see court files, staff should make sure that no documents, especially an original
will, have been removed from the file before the person leaves the court.
6.3.4 Confidentiality v. Public Record
Unless specifically placed under seal (or sequestered), all documents filed with the court are
public record. Although it would be unusual for a probate court to seal records (usually this
would happen in the district court), it is possible.
The general public is allowed to view anything that has been filed with the court, whether they
have an interest in the case or not. Under Rule 1-079, NMRA, any person asking to view a court
file is required to provide the court a government-issued identification, but is not required to
prove why they have an interest in a particular case. Section 6.3.6 below contains details about
the requirements of Rule 1-079.
Sometimes judges may get a "funny feeling" about someone requesting information about a case.
They may need to monitor the case for anything that indicates a potential problem with the case
that would require a transfer to district court. Train staff to note any unusual requests, but do not
withhold records.
The dissemination of information concerning the case should be restricted to documents that
have been filed with the court, i.e. what a person could find out by viewing the file and not what
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may have been discovered through conversations or correspondence with parties to the case. If a
document is not in the file, it is not part of the case as far as public record is concerned.
Judges and staff should tell anyone calling the court that any concerns they have must be placed
in writing to make them part of the court's record.
Always keep in mind the prohibition against ex parte communications, discussed in detail in
Chapter 8, the Inspection of Public Records Act, and the reporting requirements of Rule 1-079,
discussed below.
Practical Tip: Personal representatives may want to consider deleting information on the application that
is not required and should not be made public. Sometimes people do not want their home
phone number, cell phone number, or home address listed on the applications. In that case,
they may opt to list a work phone number or a P.O. box on court paperwork.
6.3.5 Accessibility to the Public—Inspection of Public Records Act
While probate court case files are public record, consider limiting access to files by not allowing
the public to remove files from filing cabinets themselves. Courts may want to allow title
companies and other entities that do frequent searches more access to the files, but judges or staff
can require them to sign out each file they access and limit how many files they are allowed to
view at one time. These limits will help keep files from disappearing or being misfiled. Never
allow anyone to remove a file from the probate court. Even the court staff is prohibited from
taking any documents or books pertaining to the court further than 6 miles from the court, see
Section 34-7-7. Exceptions include repairs to old docket books, etc.
Visitors to the court should never be allowed access to probate court records that have not been
made part of the file. People can now request records in writing, which includes email. State law,
Section 14-2-8, sets out the procedure for people who are requesting records.
Section 14-2-8. Procedure for requesting records. (2009)
A. Any person wishing to inspect public records may submit an oral or written request to the
custodian. However, the procedures set forth in this section shall be in response to a written
request. The failure to respond to an oral request shall not subject the custodian to any penalty.
B. Nothing in the Inspection of Public Records Act [14-3-1 NMSA 1978] shall be construed to
require a public body to create a public record.
C. A written request shall provide the name, address and telephone number of the person
seeking access to the records and shall identify the records sought with reasonable particularity.
No person requesting records shall be required to state the reason for inspecting the records.
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D. A custodian receiving a written request shall permit the inspection immediately or as soon as
is practicable under the circumstances, but not later than fifteen days after receiving a written
request. If the inspection is not permitted within three business days, the custodian shall explain
in writing when the records will be available for inspection or when the public body will respond
to the request. The three-day period shall not begin until the written request is delivered to the
office of the custodian.
E. In the event that a written request is not made to the custodian having possession of or
responsibility for the public records requested, the person receiving the request shall promptly
forward the request to the custodian of the requested public records, if known, and notify the
requester. The notification to the requester shall state the reason for the absence of the records
from that person's custody or control, the records' location and the name and address of the
custodian.
F. For the purposes of this section, "written request" includes an electronic communication,
including email or facsimile; provided that the request complies with the requirements of
Subsection C of this section.
Remember the requirement set out in Section 14-8-9.1(F) about limiting public access to
death certificates. ―Death certificates that have been recorded in the office of the county clerk
may be inspected, but shall not be copied, digitized or purchased by any third party unless fifty
years have elapsed after the date of death and the cause of death and any other medical
information contained on the death certificate is redacted, in addition to redaction of protected
personal identifier information. Death certificates and other vital records recorded in the office of
the county clerk are exempt from the restrictions contained in Subsection A of Section 24-14-27
NMSA 1978. The act of recording a death certificate in the office of the county clerk is
considered a convenience; provided that no person shall be required to record a death certificate
in the office of the county clerk to effect change of title or interest in property.‖
Important Note: Under the Inspection of Public Records Act, Section 14-2-8E, if the probate court receives
a request for records that belong to another court (i.e., district court), the probate court has
an affirmative responsibility to forward the request to the proper custodian, if known, and
notify the requestor, or if the court is unable to determine the proper custodian, to inform
the requestor.
For example, the probate court may receive a claim against the estate of a decedent, but no
case has been filed in the probate court for that decedent. The court should return the
creditor‘s claim to the creditor with a signed notification ―No probate filed as of _______
(x date).‖ Or, if the probate court knows that the claim should be filed in an existing district
court case, the probate court should forward the claim to the district court clerk.
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6.3.6 Court Rule re: Public Inspection of Court Records
NMRA Rule 1-079 provides specific guidance to courts regarding the public inspection of court
records. People who request to view court records must provide their name, address,
telephone number, plus show a government-issued ID before viewing the records. It is the
probate judge or staff‘s responsibility to keep a log of all people who request and review court
records. A sample log appears below.
NMRA 1-079. Public inspection and sealing of court records.
A. Presumption of public access; scope of rule. Court records are subject to public access
unless sealed by order of the court or otherwise protected from disclosure under the provisions of
this rule. This rule does not prescribe the manner in which the court shall provide public access
to court records, electronically or otherwise. No person or entity shall knowingly file a court
record that discloses material obtained from another court record that is sealed, conditionally
under seal, or subject to a pending motion to seal under the provisions of this rule.
B. Definitions. For purposes of this rule the following definitions apply:
(1) "court record" means all or any portion of a document, paper, exhibit, transcript, or other
material filed or lodged with the court, and the register of actions and docket entries used by the
court to document the activity in a case;
(2) "lodged" means a court record that is temporarily deposited with the court but not filed or
made available for public access;
(3) "protected personal identifier information" means all but the last four (4) digits of a social
security number, taxpayer-identification number, financial account number, or driver‘s license
number, and all but the year of a person‘s date of birth;
(4) "public" means any person or entity, except the parties to the proceeding, counsel of record
and their employees, and court personnel;
(5) "public access" means the inspection and copying of court records by the public; and
(6) "sealed" means a court record for which public access is limited by order of the court or as
required by Paragraphs C or D of this rule.
C. Limitations on public access. In addition to court records protected pursuant to Paragraphs
D and E of this rule, all court records in the following proceedings are confidential and shall be
automatically sealed without motion or order of the court:
(1) proceedings commenced under the Adoption Act, Chapter 32A, Article 5 NMSA 1978. The
automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in
Subsection A of Section 32A-5-8 NMSA 1978;
(2) proceedings to detain a person commenced under Section 24-1-15 NMSA 1978;
(3) proceedings for testing commenced under Section 24-2B-5.1 NMSA 1978;
(4) proceedings commenced under the Adult Protective Services Act, Sections 27-7-14 to 27-7-
31 NMSA 1978;
(5) proceedings commenced under the Mental Health and Developmental Disabilities Code,
Chapter 43, Article 1 NMSA 1978, subject to the disclosure requirements in Section 43-1-19
NMSA 1978;
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(6) wills deposited with the court pursuant to Section 45-2-515 NMSA 1978 that have not been
submitted to informal or formal probate proceedings. The automatic sealing provisions of this
subparagraph shall not apply to persons and entities listed in Section 45-2-515 NMSA 1978;
(7) proceedings commenced for the appointment of a person to serve as guardian for an alleged
incapacitated person subject to the disclosure requirements of Subsection I of Section 45-5-303
NMSA 1978; and
(8) proceedings commenced for the appointment of a conservator subject to the disclosure
requirements of Subsection M of Section 45-5-407 NMSA 1978. The provisions of this
paragraph notwithstanding, the docket number and case type for the categories of cases listed in
this paragraph shall not be sealed without a court order.
D. Protection of personal identifier information.
(1) The court and the parties shall avoid including protected personal identifier information in
court records unless deemed necessary for the effective operation of the court‘s judicial function.
If the court or a party deems it necessary to include protected personal identifier information in a
court record, that is a non-sanctionable decision. Protected personal identifier information shall
not be made available on publicly accessible court web sites. The court shall not publicly
display protected personal identifier information in the courthouse.
(2) The court clerk is not required to review documents for compliance with this paragraph and
shall not refuse for filing any document that does not comply with this paragraph. The court
clerk is not required to screen court records released to the public to prevent disclosure of
protected personal identifier information.
(3) Any person requesting public access to court records shall provide the court with the
person’s name, address, and telephone number along with a government-issued form of
identification or other acceptable form of identification.
On the next page is a sample log to keep track of people who view court records. The judge or
clerk, not the requester, should fill in the log.
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PUBLIC ACCESS TO PROBATE COURT FILES—SAMPLE LOG
Required Information plus Government-issued ID NMSC Rule 1-079D(3)
# Date Name Address Phone Number
(area code) - File No. Gov.-
Issued ID Type Shown
1.
( ) -
2.
( ) -
3.
( ) -
4.
( ) -
5.
( ) -
6.
( ) -
7.
( ) -
8.
( ) -
9.
( ) -
10.
( ) -
11. ( ) -
12. ( ) -
13. ( ) -
14. ( ) -
15. ( ) -
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6.3.7 Fees Allowed for Copies under Inspection of Public Records Act
The probate court or clerk‘s office can charge certain fees to provide copies of records to the
requestor. Section 14-2-9 states:
Section 14-2-9. Procedure for inspection. (2011)
A. Requested public records containing information that is exempt and nonexempt from
disclosure shall be separated by the custodian prior to inspection, and the nonexempt information
shall be made available for inspection. If necessary to preserve the integrity of computer data or
the confidentiality of exempt information contained in a database, a partial printout of data
containing public records or information may be furnished in lieu of an entire database. Exempt
information in an electronic document shall be removed along with the corresponding metadata
prior to disclosure by utilizing methods or redaction tools that prevent the recovery of exempt
information from a redacted electronic document.
B. A custodian shall provide a copy of a public record in electronic format if the public record
is available in electronic format and an electronic copy is specifically requested. However, a
custodian is only required to provide the electronic record in the file format in which it exists at
the time of the request.
C. A custodian:
(1) may charge reasonable fees for copying the public records, unless a different fee is
otherwise prescribed by law;
(2) shall not charge fees in excess of one dollar ($1.00) per printed page for documents eleven
inches by seventeen inches in size or smaller;
(3) may charge the actual costs associated with downloading copies of public records to a
computer disk or storage device, including the actual cost of the computer disk or storage device;
(4) may charge the actual costs associated with transmitting copies of public records by mail,
electronic mail or facsimile;
(5) may require advance payment of the fees before making copies of public records;
(6) shall not charge a fee for the cost of determining whether any public record is subject to
disclosure; and
(7) shall provide a receipt, upon request.
D. Nothing in this section regarding the provision of public data in electronic format shall limit
the ability of the custodian to engage in the sale of data as authorized by Section 14-3-15.1
NMSA 1978, including imposing reasonable restrictions on the use of the database and the
payment of a royalty or other consideration.
6.3.8 Other Public Records
The probate court is specifically required to make its accounts (i.e. monies received, etc.) open to
the public, see Sections 34-7-17 and 34-7-18. Personnel files, salary, budget, etc. are also public
records and must be produced upon request; however, anyone requesting these records should be
directed to make their request to the respective departments that keep these records, not the court
itself (i.e., Finance Department, Human Resources (Personnel, etc.).
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6.3.9 Other Record Retention
The State of New Mexico has record retention requirements for documents produced by state
agencies (or the political subdivisions thereof). There are also retention requirements for courts.
Most records, including correspondence that does not go into the case file, need to be retained for
three years or more. If judges are involved in purchasing items for the court, payroll, budget,
etc., judges should also be aware that retention requirements for these records also exist.
6.4 Reports to District Court
Probate judges should be aware of this requirement, even if they do not personally deal with it. It
is the responsibility of the probate judge, court clerk or other staff to provide to the district court
this information for each case filed in the probate court.
1-095B. NMRA requires states "Initial pleadings. At the time an informal probate proceeding is
filed the probate court shall advise the clerk of the district court in writing of the style of the case
and the names and addresses of the party filing the initial pleading and his attorney, if any. Upon
the appointment of a personal representative in an informal proceeding, the probate court shall
advise the clerk of the district court in writing of the names and addresses of the personal
representative and his attorney, if any. When the informal probate proceeding is closed, the
probate court shall furnish to the clerk of the district court a copy of the docket sheet for said
proceeding showing all entries. The district court shall retain such information as a part of its
records.‖
1-095C. NMRA further requires ―Filing of documents. After furnishing a copy of the docket
sheet, the probate court shall, promptly upon the filing of any document with the probate court,
cause to be furnished to the clerk of the district court notice of the type of document so filed and
date of filing. If any such document shall evidence the appointment of a personal representative
or any change in the name or address of a personal representative, the notice shall include the
name and address of the personal representative, or any change therein. The clerk of the district
court shall enter such information on its copy of the appropriate docket sheet.‖
Some probate courts send a monthly report to the district court that includes a cover sheet with
the following attached documents:
Copies of the docket sheets for each case filed in the previous month.
Copy of the daily worksheet showing what pleadings have been filed (in all cases) for
that month.
Copies of the docket sheets for cases where a Verified Statement (which closes the
case) or Certificate of the Court was filed.
Practical Tip: Depending on the court‘s caseload, judges may want to file reports as soon as a case is
opened. Check with the district court in each county regarding what procedure to follow.
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CHAPTER 7
How to Transfer a Case to District
Court
This chapter covers:
Reasons for transferring a case to district court.
Methods of transfer based on which court initiated the transfer.
Sample orders and forms for transferring a case.
7.1 Reasons for Transferring a Case
Reasons a case may need to be transferred to district court by the probate judge include:
Conflict of interest.
Upon the petition of an interested party, see Section 34-7-9, also see 45-1-303C.
Conflicts that have arisen between the parties.
One or more of the parties exhibits mental health or criminal behavior that
appears to require district court intervention or oversight.
Guardianship and trust issues.
Determination of the validity of claims against the estate.
Dispute over creditor's claim.
Dispute over validity of a will.
Removal of a personal representative for cause.
Need for a formal closing.
7.2 Methods of Transfer
There are three ways to transfer a probate court case to the district court:
1. The probate court initiates the transfer upon its own motion.
2. The probate court initiates the transfer upon the motion of an interested person.
3. An interested person files a petition with the district court (this way the party pays
the district court filing fee at the time the petition is filed). The probate court then
transfers the case upon receipt of a certified copy of the district court order to
transfer the case.
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Note: Payment of a district court filing fee is required before the case is transferred; see
NMRA 1-099(A); however, in some cases, if the probate judge is seeking the transfer, he/she
can ask that the district court waive payment of the filing fee. Otherwise, the filing fee must
be paid by the party requesting the transfer. District court filing fees vary among judicial
districts, ranging from $107 to $132 ($137 for domestic issues).
7.2.1 Transfer Initiated by Probate Court Order
In a case where the transfer is initiated in the probate court with an order of the probate
judge:
Probate judge signs order transferring the case to district court, usually for a
formal proceeding. As part of the order, the probate judge may require the
parties to submit a check or money order payable to the ______ Judicial District
Court in the amount of the district court docket fee.
The original probate court order goes in the case file.
The probate court clerk or judge delivers an endorsed-filed certified copy of the
probate court‘s order for transfer, along with the entire probate file (excluding the
original transfer order) to the district court. The probate court should retain a copy
of the will, if any, for its records.
The court clerk also prepares and delivers the original and one copy of a
Transmittal Memorandum to the district court. The Transmittal Memorandum is
set up like a pleading. In it the clerk of the probate court certifies that the original
documents were delivered to the district court on ____ date. The Transmittal
Memorandum sets out the title of each pleading being delivered, and the date it
was filed with the probate court. The court clerk or deputy clerk signs and dates
the Memorandum, and affixes the court seal.
The district court clerk opens a new file (case) with the original Transmittal
Memorandum and attached pleadings filed as one document.
The district court clerk returns an endorsed-filed copy to the probate court that
includes a certification that the district court received the documents. (This
provides proof that the documents were actually transferred, and is a record of
what was done for anyone who looks at the case in the future.)
The certified copy of the Transmittal Memorandum is then file-stamped by the
probate court clerk and placed in the probate court file.
The docket sheet and the Index should reflect that the case was transferred to
district court as Case #______ and on what date.
Four sample order forms for transferring a case from probate court to district court are
included at the end of this chapter.
Note: The need to transfer a case to another probate court can also arise. The same procedure
should be followed to ensure continuity of records.
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7.2.2 Transfer Initiated by District Court Order
Sometimes a transfer is initiated by the personal representative or other interested person in
the district court with the filing of a petition. In that case, once the probate court has received
a certified copy of the order transferring the case, the probate court clerk files the order and
proceeds as set out above.
The general rule is that the district court filing fee must be paid before the case can be
transferred to the district court (see Rule 1-095(E)). A March 1996 version of the District
Court Administrative Procedures Manual, Chapter 4 on fees, states in Section 4.3-4, ―Note: If
an attorney files a petition for transfer from probate court, a filing fee is accessed [sic]. If the
case is transferred by the probate judge on his/her own order, no fee is required.‖
[emphasis added]. Probate judges should ask their district courts about whether this ―waiver
of fee‖ rule applies in their district.
The most comprehensive way to transfer a case to the district court is through the use of a
Transmittal Memorandum or similar document. The Transmittal Memorandum should state
―upon the order of the Probate/District Court, filed on _____________ the probate court
hereby transfers the following documents to the district court.‖ Then list each document and
the date it was filed with the probate court. Make an extra copy of the Memorandum, which
includes a Certification of Receipt, i.e. the district court certifies that they have received the
documents listed on the Memorandum. (This document will be file-stamped and placed in the
probate file for the case.) After receiving a certified copy of the transfer memorandum back
from the district court, indicate that the case has been transferred to the district court ―as Case
#…‖ on the docket sheet for that probate case and in the court index.
Some probate courts have experienced problems with concurrent cases being opened in the
district court after the case has already been filed with the probate court. Parties may open a
new case in the district court without transferring the case from the probate court. Problems
arise, especially when there are two different personal representatives, one appointed in each
court. The district court judge may order that the original probate court case be transferred or
closed, but often no one notifies the probate court. This can also become an issue when the
probate court still has the original will in its possession and someone needs the original will.
It is a difficult situation if the probate judge does not know another case for the same
decedent has been filed in the district court.
Probate judges should be aware that this sometimes occurs and, once they learn about the
case in district court, to either close the case with an order stating the district court case
number that now controls and that the Letters issued to the personal representative in the
probate court case are revoked. In the alternative, the probate judge, on his or her own
motion, can transfer the probate file contents to the district court.
Probate judges may need to discuss this issue with their district court to find a way to resolve
the problem. After communicating with the staff of the district court and its judges, the
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district court may agree to send the probate court a certified copy of all district court orders
that relate to the transfer of a probate court case.
Here is a suggested procedure to transfer a case from the probate court to the district court:
1. The district court judge issues an order transferring the case from the probate
court to the district court.
2. The party requesting the transfer provides a certified copy of the order to the
probate court.
3. The probate court prepares a Transmittal Memorandum listing the pleadings
being submitted to the district court and hand-delivers the pleadings from the
file to the district court clerk.
4. The district court clerk certifies having received the pleadings from the
probate court.
The probate court is responsible for transferring the case file to the district court. The judge
or staff should deliver the file to the district court. Do not allow anyone else (i.e., attorneys
or parties to the case) to deliver the case file to the district court.
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7.3 Sample Orders and Forms
7.3.1 Sample District Court Order to Probate Court to Transfer Case
STATE OF NEW MEXICO Filed stamps from both courts
COUNTY OF BERNALILLO appear in this corner
SECOND JUDICIAL DISTRICT COURT
No. PB-2006 00579 (District Court Case Number goes here)
IN THE MATTER OF THE ESTATE OF
_____________, Deceased
ORDER FOR TRANSFER TO DISTRICT COURT
Petitioner, Personal Representative of the Estate of _____________, Personal
Representative ___________, by and through her counsel ______________, has filed a
Petition for the Transfer to District Court of this intestate proceeding from the Probate Court
of Bernalillo County in order that there may be a formal closing of the estate and
determination of heirship and the Court being fully advised;
IT IS ORDERED that the Clerk of the Probate Court of Bernalillo County, New
Mexico, transfer the file for this intestate proceeding, which is Probate No. 2006 183 in the
Probate Court, to the Clerk of this Court with this Court taking jurisdiction of the
proceedings.
_________________________________
District Court Judge ________________
Submitted by:
___________________________
Attorney Name
Attorney for Petitioner ____________ District Court Clerk certifies
Address the order to be true and correct
City, State, Zip copy of the original in this space.
Telephone: (505) 000-0000
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7.3.2 Sample Form of Transmittal Memorandum for Transfer to
District Court
Practical Tip: It is important that judges or the court clerk can trace or account for all documents that are
transferred from the probate court to the district court. This is so that in future years,
someone searching probate court records will know what happened to the documents in the
probate court case file. This Transmittal Memorandum makes a record of the documents
transferred. The district court clerk should sign the bottom of the Memorandum and return it
to the probate court for inclusion in the probate court case file.
STATE OF NEW MEXICO
IN THE PROBATE COURT
COUNTY OF BERNALILLO
Probate Court No. ______________
District Court Case # _______________
IN THE MATTER OF THE ESTATE
OF _____________________, Deceased
TRANSMITTAL MEMORANDUM
I, _____________Clerk of the Probate Court and Ex-Officio Recorder of the County
of__________________, New Mexico, pursuant to an order of the (select one)
[____________ County Probate Court] OR [__________ Judicial District Court] entered
________ (date of order), do hereby transmit to the Clerk of the __________Judicial District
Court the following papers, which comprise all of the ORIGINAL RECORDS filed in the
Probate Court relating to said Estate; to wit:
Document Date Filed
Application for Informal Probate of Will and for Informal Appointment of Personal Oct. 20, 2000
Representative
Last Will and Testament of__________ Oct. 20, 2000
Clerk’s Certificate of Judgment Approving Last Will and Testament Oct. 20, 2000
Certificate of Review of Death Certificate Oct. 20, 2000
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Order for Informal Probate of Will and for Informal Appointment of Personal Oct. 20, 2000
Letters Testamentary and Acceptance Oct. 20, 2000
Notice to Creditors Nov. 21, 2000
Notice of Denial of Claims Dec. 1, 2000
Affidavit of Publication Jan. 8, 2001
Petition for Transfer to District Court Feb 17, 2000
Order Transferring Cause to District Court Feb. 19, 2000
WITNESS MY HAND AND SEAL OF THE PROBATE COURT THIS ________ DAY
OF _______________________________, 20__.
______________________________________
CLERK OF THE PROBATE COURT
By:
____________________________________
Deputy Clerk
Received from the Clerk of the Probate Court, the papers listed above. Witness my
hand and seal of the District Court this _______ day of ________________, 20___.
_____________________________________
CLERK OF THE DISTRICT COURT
By:
____________________________________
Deputy Clerk
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7.3.3 Sample Order for Permanent Transfer to District Court
STATE OF NEW MEXICO
IN THE PROBATE COURT
COUNTY OF ___________________
No.
IN THE MATTER OF THE ESTATE
OF ______________, DECEASED
TRANSFER ORDER
This matter came before the Court on review of the file. The Probate Court of ____________
County, New Mexico has determined that it is declining to oversee this case due to the fact
that there is a dispute between family members concerning the distribution of the estate [or
insert other reasons/findings]. The Probate Court finds that this case should be transferred
from the Probate Court of _______________ County to the _________ (insert number of the
district court, such as Second, Thirteenth, etc.) Judicial District Court for ___________
County, New Mexico for a formal proceeding. This transfer is subject to any District Court
docket fee or other fees that may apply.
IT IS HEREBY ORDERED that the case In the Matter of the Estate of ______________,
Deceased, Probate # _________ filed in the Probate Court of _________ County be
transferred to the __________ (insert number of the district court, such as Second,
Thirteenth, etc.) Judicial District Court of ___________ County, New Mexico, for a formal
proceeding.
______________________________
Judge‘s Name
____________ County Probate Judge
Address
City/State/Zip
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7.3.4 Sample Order of Recusal and Transfer to District Court
STATE OF NEW MEXICO
IN THE PROBATE COURT
COUNTY OF ____________________
No.
IN THE MATTER OF THE ESTATE
OF _____________, Deceased
TRANSFER ORDER
This matter came before the Probate Court on review of the file. ______________, Probate
Judge, recuses himself/herself from the above-referenced cause.
The Probate Court finds that this case should be transferred from the Probate Court of
_________________ County to the _________ (insert number of the district court, such as
Second, Thirteenth, etc.) Judicial District Court for ___________ County, New Mexico.
IT IS HEREBY ORDERED that the case In the Matter of the Estate of ______________,
Deceased, Probate # _________ filed in the Probate Court of ____________________
County be transferred to the _________ (insert number of the court, such as Second,
Thirteenth, etc.) Judicial District Court for ___________ County, New Mexico.
______________________________
Judge‘s Name
____________ County Probate Judge
Address
City/State/Zip
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7.3.5 Sample Order for Transfer to District Court with Remand to
Probate Court after Resolution of Dispute
STATE OF NEW MEXICO
IN THE PROBATE COURT
COUNTY OF ____________________
No.
IN THE MATTER OF THE ESTATE
OF _______________, Deceased
TRANSFER ORDER
This matter came before the Probate Court on review of the file. The Probate Court of
____________ County, New Mexico has determined that it has lost jurisdiction due to the
fact that there is a dispute concerning the distribution of the estate. The Probate Court finds
that this case should be transferred from the Probate Court of ____________________
County to the ___________ (insert number of the district court, such as Second, Thirteenth,
etc.) Judicial District Court for ___________ County, New Mexico for the determination of
all disputed issues.
IT IS HEREBY ORDERED that the case In the Matter of the Estate of ______________,
Deceased, Probate # ____________ filed in the Probate Court of ____________________
County be transferred to the ______________ (insert number of the district court, such as
Second, Thirteenth, etc.) Judicial District Court for ___________ County, New Mexico for
determination of all disputed issues, subject to remand back to the Probate Court for
completion following resolution of the disputed issues.
______________________________
Judge‘s Name
____________ County Probate Judge
Address
City/State/Zip
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7.3.6 Sample Order to Decline Jurisdiction “for any reason”
STATE OF NEW MEXICO
IN THE PROBATE COURT
COUNTY OF ____________________
No.
IN THE MATTER OF THE ESTATE
OF ____________________, Deceased
TRANSFER ORDER
This matter came before the probate court on review of the file. The probate court of
____________________ County, New Mexico has determined that it should exercise its
statutory right to decline the application pursuant to Sections 45-3-305 and 45-3-309, NMSA
1978. The probate court finds that this case should be transferred from the probate court of
____________________ County to the _____________ (insert number of the district court,
such as Second, Thirteenth, etc.) Judicial District Court for ___________ County, New
Mexico for a formal probate proceeding.
In support of this order, the probate court finds:
Judge may insert facts and cites to statutes here that will help the district
judge understand the reasons why the probate judge is declining to act.
Number each finding with a separate number.
IT IS HEREBY ORDERED that the case in the matter of the estate of ______________,
deceased Probate # ____________ filed in the probate court of ____________________
County be transferred to the ______________ (insert number of the district court, such as
Second, Thirteenth, etc.) Judicial District Court for ___________ County, New Mexico for a
formal probate proceeding.
______________________________
Judge‘s Name
____________ County Probate Judge
Address
City/State/Zip
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7.3.7 Sample Order of Recusal for “ex parte” Communications
STATE OF NEW MEXICO
IN THE PROBATE COURT
COUNTY OF ____________________
No.
IN THE MATTER OF THE ESTATE
OF ____________________, Deceased
TRANSFER ORDER
This matter came before the probate court on review of the file. The probate court of
____________________ County, New Mexico is declining the application due to repeated
attempts by ____________ (name of person initiating ex parte communications) at ex parte
communications with the judge. ______________, Probate Judge, recuses himself/herself
from the above-referenced cause.
The probate court finds that this case should be transferred from the probate court of
____________________ County to the _____________ (insert number of the district court,
such as Second, Thirteenth, etc.) Judicial District Court for ___________ County, New
Mexico for a formal probate proceeding.
In support of this order, the probate court finds:
1. ____________ (name of person who initiated ex parte communications) has made or
attempted to make ex parte communications with the court.
2. These communications make it impossible for the court to preside over this case in a
fair and impartial manner, as required by law.
3. Under Section 34-7-9, NMSA 1978, whenever the probate judge shall, for any reason,
be interested or disqualified from acting in any proceeding coming within the jurisdiction of
the probate court, he shall upon his own motion or that of any interested party, forthwith
enter an order transferring such proceeding to the district court having jurisdiction in that
county and directing the probate clerk to deposit forthwith within the office of the clerk of
said district court a certified copy of said order together with all original.
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IT IS THEREFORE ORDERED that the probate court recuses itself from hearing this matter.
IT IS FURTHER ORDERED that the case in the matter of the estate of ______________,
deceased Probate # ____________ filed in the probate court of ____________________
County be transferred to the ______________ (insert number of the district court, such as
Second, Thirteenth, etc.) Judicial District Court for ___________ County, New Mexico for a
formal probate proceeding.
______________________________
Judge‘s Name
_________________ County Probate
Judge
Address
City/State/Zip
7-14
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8-1
CHAPTER 8
Judicial Conduct
This chapter covers:
Overview of ethical requirements for probate judges.
Ex parte communications by the judge and staff with the parties.
Staff contact with self-represented applicants.
Behavior in and outside of court.
Political and community activity.
Unauthorized practice of law.
Judicial Standards Commission and disciplinary action against judges.
Safety valves for probate judges.
8.1 Overview of Ethical Requirements
The Code of Judicial Conduct, Rules 21-100 through 21-406 (New Mexico Rules Annotated,
Volume 2), contains ethics rules that apply to probate judges. Judges must respect and honor
the judicial office as a public trust and strive to maintain and enhance confidence in the legal
system.
The Code underwent major revisions in 2012. Probate judges should carefully read and
familiarize themselves with all sections of the Code of Judicial Conduct. Chapter 13 of
the manual contains the complete text of the Code of Judicial Conduct.
Not all sections of the Code of Judicial Conduct apply to all judges. The ―Application‖
provisions at the beginning of the Code (before Rule 21-100) address these limitations. A
probate judge is a ―Continuing Part-Time Judge.‖
Judges are held to a high standard of ethical public service. According to the preamble of the
Code, judges should maintain the dignity of judicial office at all times and avoid both
impropriety and the appearance of impropriety in their professional and personal lives. They
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should aspire at all times to conduct that ensures the greatest possible public confidence in
their independence, impartiality, integrity, and competence.
8.1.1 Code of Judicial Conduct Canons
The Code contains four Canons and many rules. The four Canons are:
21-100. Canon 1.
A judge shall uphold and promote the independence, integrity, and impartiality of the
judiciary and shall avoid impropriety and the appearance of impropriety.
21-200. Canon 2.
A judge shall perform the duties of judicial office impartially, competently, and diligently.
21-300. Canon 3.
A judge shall conduct the judge‘s personal and extrajudicial activities to minimize the risk of
conflict with the obligations of judicial office.
21-400. Canon 4.
A judge or candidate for judicial office shall not engage in political or campaign activity that
is inconsistent with the independence, integrity, or impartiality of the judiciary.
8.1.2 Code of Judicial Conduct “Golden Rules”
Three ―golden rules‖ of the Code below provide general guidance to all judges. Even though
probate judges serve part-time, the Code applies to them full-time. Before doing anything
that might invite public scrutiny or negative press coverage, judges should ask themselves,
―Do I want to read about what I am about to do on the front page of the newspaper or hear
about this on the evening news?‖
Rule 21-101 states, ―A judge shall respect and comply with the law, including the Code of
Judicial Conduct.‖
Rule 21-102 states, ―A judge shall act at all times in a manner that promotes public
confidence in the independence, integrity, and impartiality of the judiciary and shall avoid
impropriety and the appearance of impropriety.‖
Rule 21-103 states, ―A judge shall not abuse the prestige of judicial office to advance the
personal or economic interests of the judge or others, or allow others to do so.‖
If a judge encounters a particular problem or request, first ask if saying ―yes‖ will violate any
of these three rules.
The commentary after each of these sections includes specific examples of improper conduct
and judicial reprimands that should guide judges. The commentary to the Code of Judicial
Conduct is also included in Chapter 13 of this manual.
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8.1.3 General Do’s and Don’ts
According to the Code of Judicial Conduct, probate judges must:
Follow the Uniform Probate Code and other laws that apply to their cases.
Uphold the integrity and independence of the judiciary.
Avoid impropriety and the appearance of impropriety; i.e., conduct that reflects
adversely on the judge‘s honesty, impartiality, temperament, or fitness to serve as
a judge. Rule 21-102 and Terminology ―appearance of impropriety.‖
Perform their job duties fairly and impartially. Rule 21-202.
Disqualify themselves when a conflict of interest exists or arises.
Avoid ex parte communications.
Follow election and political activities restrictions that apply to probate judges.
Follow campaign fund-raising rules that apply to probate judges.
Act carefully with respect to activities outside of their judgeship.
Probate judges may:
Ask judges, attorneys, or other disinterested experts for advice, subject to the new
restrictions set out in 8.2.3 below.
Practice law if they are licensed attorneys in New Mexico. But they may not
practice law in their own courts. Section IIB of the Application provisions of the
Code, which applies to part-time judges, states that a part-time judge ―shall not
practice law in the court on which the judge serves or in any court subject to the
appellate jurisdiction of the court on which the judge serves, and shall not act as a
lawyer in a proceeding in which the judge has served as a judge or in any other
proceeding related thereto.‖
Engage in certain political activity EXCEPT while serving as a judge. See Section
IIA(1) of the Application, which exempts probate judges from complying with
Rules 21-401C(1) through (6), except while serving as a judge.
Speak, write, lecture and teach about the law, the legal system, or the
administration of justice.
Probate judges shall not:
Abuse the prestige of judicial office by using one‘s judicial status for favorable or
deferential treatment. Rule 21-103[1].
Accept any payment or gratuities for performing a marriage ceremony. Rule 21-
312, Commentary [3].
Appear at a public hearing except in connection with matters concerning the legal
system or the administration of justice (judges may appear before government
bodies pro se in matters involving the judge‘s legal or economic interest, for
example, a zoning hearing). Rule 21-302A.
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Engage in financial and business dealings that exploit the judge‘s judicial
position. Rule 21-311C(4).
Accept gifts, bequests, favors, or loans from anyone except friends, relatives and a
few other exceptions. Rule 21-313.
8.2 Communications by Judge with Parties
8.2.1 Ex Parte Communications by Judge and Staff
Under the Code of Judicial Conduct, ―[a] judge shall not initiate, permit, or consider ex
parte communications or consider other communications made to the judge outside the
presence of the parties or their lawyers, concerning a pending or impending
matter…"Rule 21-209A, New Mexico Rules Annotated (NMRA). The full text of Rule 21-
209 states (provisions particularly applicable to probate judges appear in boldface),
Rule 21-209. Ex parte communications.
A. A judge shall not initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties or their lawyers,
concerning a pending or impending matter, except as follows:
(1) When circumstances require it, ex parte communication for scheduling, administrative,
or emergency purposes, which does not address substantive matters, is permitted, provided:
(a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical
advantage as a result of the ex parte communication; and
(b) the judge makes provision promptly to notify all other parties of the substance of
the ex parte communication, and gives the parties an opportunity to respond.
(2) A judge may obtain the written advice of a disinterested expert on the law
applicable to a proceeding before the judge, if the judge gives advance notice to the
parties of the person to be consulted and the subject matter of the advice to be solicited,
and affords the parties a reasonable opportunity to object and respond to the notice
and to the advice received. (3) A judge may consult with court staff and court officials whose functions are to aid the
judge in carrying out the judge‘s adjudicative responsibilities, or with other judges,
provided the judge makes reasonable efforts to avoid receiving factual information that
is not part of the record and does not abrogate the responsibility personally to decide
the matter. (4) A judge may, with the consent of the parties, confer separately with the parties and their
lawyers in an effort to settle matters pending before the judge.
(5) A judge may initiate, permit, or consider any ex parte communication when expressly
authorized by law, rule, or Supreme Court order to do so.
B. If a judge inadvertently receives an unauthorized ex parte communication bearing
upon the substance of a matter, the judge shall make provision promptly to notify the
parties of the substance of the communication and provide the parties with an
opportunity to respond.
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C. A judge shall not investigate facts in a matter independently, and shall consider
only the evidence presented and any facts that may properly be judicially noticed.
D. A judge shall make reasonable efforts, including providing appropriate supervision, to
ensure that this rule is not violated by court staff, court officials, and others subject to the
judge‘s direction and control.
The commentary and annotations to Rule 21-209 are included in Chapter 13. Based on this
rule:
Probate judges and their staffs should be careful not to talk to one party or family
member alone about a case.
Copies of any letters or other communications should be directed to all people
affected or only to the attorneys who have entered an appearance in the case, if
any. The judge may choose to file a duplicate original of letters or other
communications in the court‘s case file.
Telephone callers asking about a case need to be informed by the judge or staff
about the prohibition against ex parte communications.
Judges and staff should also be careful about e-mail communications.
If an estate is open in the probate court, any ―objections‖ raised by parties to the case should
be in writing and filed with the court so that: (1) the issue is in the court record, and, (2) the
judge is not accused of any impropriety through improper contact with any of the parties.
Sometimes a judge (or staff person) does not realize at the time of a conversation that the
person is connected to a case filed with the court and will end up talking with one party
without the knowledge of other interested persons. E-mail can be particularly problematic.
To avoid the appearance of impropriety judges should make everyone aware of their duty to
make all communications available to all other parties.
A simple introductory procedure can help eliminate this problem. If a person‘s questions
seem general and related to procedure, rather than disputes, the judge may not need to inquire
further. But if the person is complaining about the personal representative, or asking ―What if
so-and-so has not done so-and-so?‖ or seems to be involved in a dispute about an estate,
more inquiry may be advisable.
Before proceeding further in conversations about cases involving potential disputes, the
judge or staff can ask: (1) ―Is this case already filed in the probate court?‖ and, (2) ―Are you
a party to the case?‖ If the person answers ―yes‖ to either question, then the judge or staff can
say something like, ―I am not allowed to give legal advice about specific cases to anybody; I
can only tell you generally what the law requires. Nor am I allowed to talk with one party in
the case without talking to all parties. Please talk directly to the personal representative or
hire an attorney to assist you.‖ If the case has been filed in another court, judges should
advise the person that they are not allowed to comment on what another court may or may
8-6
not have done. Even if a probate case has not been filed, remind the person that judges and
staff are not allowed to give legal advice.
Court and county clerk staff should also be aware that they should not comment on how the
probate judge or another judge or court might proceed in a matter that comes before the
probate court or any other court.
Practical Tip: If a judge inadvertently receives an unauthorized ex parte communication about the
substance of a matter in the court, the judge shall promptly notify all parties of the
substance of the communication and provide the parties with an opportunity to respond.
Rule 21-209B. The judge should include the original ex parte communication and the
court‘s original written notification in the court file, along with a list of who received the
notification, to help prevent accusations that the judge was more partial to one party than
another.
8.2.2 Staff Contact with Self-Represented Applicants
The New Mexico Supreme Court passed a rule that addresses providing court information to
self-represented litigants (pro se applicants). The rule provides excellent, specific guidance
about communicating with pro se litigants. The rule applies to all judicial branch employees
except judges, settlement facilitators, and mediators. Probate judges should make sure that
the probate court staff and county clerk‘s staff are familiar with and understand this rule.
Although judges are not bound by the rule, they are bound by other laws that prohibit them
from giving legal advice. Judges should strongly consider using the rule for guidance in
their own communications with pro se applicants to avoid violating the Code of Judicial
Conduct. The full text of Rule 23-113, New Mexico Rules Annotated (NMRA) reads:
Rule 23-113. Providing court information to self-represented litigants.
A. Self-represented litigant, court staff; defined. For purposes of this rule, a self-
represented litigant is any person who appears, or is contemplating an appearance, in any
court in this state without attorney representation and court staff includes all judicial branch
employees except judges, settlement facilitators, and mediators.
B. Permitted information. When communicating with a self-represented litigant, court
staff are permitted to:
(1) encourage the self-represented litigant to obtain legal advice from a licensed New
Mexico attorney without recommending a specific attorney;
(2) provide information about available pro bono, free or low-cost civil legal services, legal
aid programs and lawyer referral services without endorsing a specific service;
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(3) provide information about available statutory or court-approved forms, pleadings and
instructions without providing advice or recommendations as to any specific course of action;
(4) answer questions about what information is being requested on forms without providing
the self-represented litigant with the specific words to put in a form;
(5) provide, orally or in writing, definitions of legal terminology from widely accepted
legal dictionaries or other dictionaries, if available, and without advising whether a particular
definition is applicable to the self-represented litigant‘s situation;
(6) provide, orally or in writing, citations to constitutions, statutes, administrative rules or
regulations, court rules and case law, but are not required to search for the citation and are
not permitted to perform legal research as defined in Subparagraph (4) of Paragraph C of this
rule or advise whether a particular provision is applicable to the self-represented litigant‘s
situation;
(7) provide publically available, non-sequestered information on docketed cases;
(8) provide general information about court processes, procedures and practices, including
court schedules and how to get matters scheduled;
(9) provide information about mediation, parenting courses, courses for children of
divorcing parents and any other appropriate information approved by the court for self-
represented litigants;
(10) provide, orally or in writing, information on local court rules and administrative
orders;
(11) provide information regarding proper courtroom conduct and decorum; and
(12) provide general information about community resources without endorsing a specific
resource.
C. Prohibited information. When communicating with a self-represented litigant, court
staff are prohibited from:
(1) providing, orally or in writing, any interpretation or application of legal terminology,
constitutional provisions, statutory provisions, administrative rules or regulations, court rules
and case law based on specific facts or the self-represented litigant‘s particular
circumstances;
(2) providing, orally or in writing, information that must be kept confidential by statute,
administrative rule or regulation, court rule, court order or case law;
(3) creating documents or filling in the blanks on forms on behalf of self-represented
litigants;
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(4) performing direct legal research by applying the law to specific facts or expressing an
opinion regarding the applicability of any constitutional provisions, statutes, administrative
rules or regulations, court rules, court orders or case law to the self-represented litigant‘s
particular circumstances;
(5) explaining court orders or decisions except as permitted by Subparagraph (8) of
Paragraph B of this rule;
(6) telling the self-represented litigant what to say in court;
(7) assisting or participating in any unauthorized or inappropriate communications with a
judge on behalf of the self-represented litigant outside the presence of the other party;
(8) indicating, orally or in writing, whether the self-represented litigant should file a case in
court;
(9) predicting the outcome of a case filed in court; and
(10) indicating, orally or in writing, what the self-represented litigant should do or needs to
do.
D. Immunity. Despite any information provided to self-represented litigants pursuant to
this rule, self-represented litigants remain responsible for conducting themselves in an
appropriate manner before the court and representing themselves in compliance with all
applicable constitutional and statutory provisions, administrative rules or regulations, court
rules, court orders and case law. Court staff shall be immune from suit, as provided by
statute or common law, for any information provided to a self-represented litigant.
Practical Tip: Judges and their staffs should strongly consider keeping written records of all conversations
they have regarding court business. This includes telephone calls, walk-in visitors, e-mails,
and other contacts. The date, name of the person spoken to, the person‘s phone number or
other contact information, and a summary of the discussion can prove invaluable in
refreshing the judge‘s memory if necessary at a later date. A simple phone log or other
record should provide sufficient documentation.
8.2.3 Obtaining Advice about a Case
Judges may have a case with troubling or unique issues, and the judge may want to consult
with someone else about the applicable law and proper course of action. Current provisions
of the Code do not allow probate judges to obtain advice from disinterested experts unless
the judge gives advance notice to all parties and allows the parties to participate.
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If a judge seeks advice from a disinterested expert, the current Code states, ―A judge may
obtain the written [emphasis added] advice of a disinterested expert on the law applicable to
a proceeding before the judge, if the judge gives advance notice to the parties of the person to
be consulted and the subject matter of the advice to be solicited, and affords the parties a
reasonable opportunity to object and respond to the notice and to the advice received.‖ 21-
209A(2). Commentary [3] to Rule 21-209 states, ―The proscription against communications
concerning a proceeding includes communications with lawyers, law teachers, and other
persons who are not participants in the proceeding, except to the limited extent permitted by
this rule. An appropriate and often desirable procedure for a court to obtain the advice of a
disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.‖
Practical Tip: If a probate judge wishes to consult with a lawyer, law teacher, or other disinterested expert
in probate law, the judge must give advance written notice to the parties that comply with
Rule 21-209A(2). The advice from the disinterested expert must be written, not verbal. A
probate judge should not obtain verbal advice from a disinterested expert. The new rule
with the written requirement allows the parties to comment on specific issues for which
advice was obtained. This levels the playing field for all parties because they are all relying
on the same set of information.
When asking another judge for advice, the Code does not require that notice be given to the
parties, see Rule 21-209A(3). The rule states, ―A judge may consult with court staff and court
officials whose functions are to aid the judge in carrying out the judge‘s adjudicative
responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid
receiving factual information that is not part of the record and does not abrogate the
responsibility personally to decide the matter.‖ Commentary [5] to Rule 21-209 states, ―A
judge may consult with other judges on pending matters, but must avoid ex parte discussions
of a case with judges who have previously been disqualified from hearing the matter, and
with judges who have appellate jurisdiction over the matter.‖
8.3 Behavior at Court
The judge‘s job is to act impartially and fairly and not to treat or appear to treat one person or
attorney more favorably than another. A judge shall perform the duties of judicial office,
including administrative duties, without bias, prejudice or harassment. Rule 21-203. A judge
shall not, in the performance of judicial duties, by words or conduct manifest bias or
prejudice, or engage in harassment, including but not limited to bias, prejudice, or
harassment based upon race, religion, color, national origin, ethnicity, ancestry, sex, sexual
orientation, gender identity, marital status, spousal affiliation, socioeconomic status, political
affiliation, age, physical or mental handicap or serious medical condition; and shall not
permit court staff, court officials, or others subject to the judge‘s direction or control to do so.
Probate judges should not:
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Make off-color or ethnic jokes.
Engage in banter with court staff that makes anyone uncomfortable or inclined to file
a sexual harassment complaint.
Delay in acting on cases that meet all legal requirements.
Allow their non-court activities to interfere with their judicial duties.
Drink, use illegal drugs, or nap on the job.
Practical Tip: If a probate judge sees a magistrate judge regularly drinking at his or her desk at the
courthouse, what should the judge do? The Code states, ―A judge who has a reasonable
belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or
by a mental, emotional, or physical condition, shall take appropriate action, which may
include a confidential referral to the Lawyer‘s Assistance Committee of the State Bar,
Alcoholics Anonymous, Narcotics Anonymous, or other support group recognized by the
New Mexico Disciplinary Board or the New Mexico Judicial Standards Commission, Rule
21-214A.‖
Judges who know that another judge has violated the Code also have a duty to inform the
Judicial Standards Commission in certain cases that do not involve substance abuse. This
duty is mandatory when the violation of the Code raises a substantial question regarding the
judge‘s honesty, trustworthiness, or fitness as a judge. Rule 21-215A.
Probate judges should:
Give precedence to judicial duties over the judge‘s personal and extrajudicial
activities. Rule 21-201.
Perform their judicial and administrative duties competently and diligently. Rule 21-
205.
Be available to act on cases that meet all legal requirements. Rule 21-207.
Be patient, dignified and courteous to everyone who contacts the court, as well as
court staff. Rule 21-208. Judges should strive to be courteous and even-handed with
pro se applicants and attorneys, even those who are rude or difficult.
Disqualify himself or herself in any proceeding in which the judge‘s impartiality
might reasonably be questioned. Rule 21-211.
A judge may make public statements in the course of official duties, may explain court
procedures, and may comment on any proceeding in which the judge is a litigant in a
personal capacity. Rule 21-210D. However, probate judges should not testify before
legislative committees except in matters concerning the legal system or the administration of
justice. Matters of substantive law have a different analysis. If a judge‘s state senator
introduces a bill that adjusts probate law and asks the judge to testify at the legislature, the
judge should decline. Rule 21-302A.
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Practical Tip: Probate judges should not delay in acting on cases. When a magistrate judge delayed in
signing and filing written judgments and sentences and had ex parte communications, the
judge was disciplined for willful misconduct in office. In re Perea, S.Ct. No. 25,822 (Filed
August 17, 1999) decided prior to the 2011 recompilation. See annotations to Rule 21-102.
8.4 Behavior Outside of Court
A judge is stopped by a police officer for speeding. He or she should, (a) exclaim loudly
―give me a break, I‘m a judge!‖ or (b) say nothing about being a judge, but cooperate fully by
providing a driver‘s license and any other documents requested by the police officer. The
answer is (b).
Rule 21-103[1] clearly states that it is improper for a judge to allude to judicial status to gain
favorable treatment in encounters with traffic officials. Similarly, a judge should not seek
special treatment or discounts at restaurants, parking facilities, or any other businesses. Rule
21-103 prohibits a judge from abusing the prestige of judicial office to advance the personal
or economic interests of the judge or others, or allow others to do so on the judge‘s behalf. A
spouse, passenger or friend of the judge in the car should not ―play the judge card‖ either.
Separating judicial work from personal life should help the judge avoid trouble. Judges
should not:
Talk about cases at home, at parties, at the gym, place of worship or anywhere else.
What happens at the court should stay at the court.
Use judicial letterhead for personal business.
Use their judicial status to gain preferential treatment.
Use judicial resources, such as copy and fax machines, for personal business.
Violate any criminal laws.
Practical Tip: The prohibition against behaving with impropriety or the appearance of impropriety applies
to both the professional and personal conduct of a judge. Rule 21-102, commentary [7]. A
judge should expect to be the subject of public scrutiny that might be viewed as burdensome
if applies to other citizens. Rule 21-102, commentary [2].
Suppose a judge learns as part of a probate proceeding that the recently-deceased decedent
made a lot of money buying and selling shares of a certain stock. Can the judge buy some of
that stock? If the judge acquires information of commercial or other value that is unavailable
to the public, the judge cannot use that information for personal gain or for any purpose
unrelated to his or her judicial duties. Rule 21-305, commentary [1]. If the information the
judge uses to buy the stock is public information, the judge can arguably buy the stock.
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However, given the general rule to avoid the appearance of impropriety, the judge should
probably refrain from buying the stock.
8.5 Community Activity for Probate Judges
The duties of judicial office take precedence over all of a judge‘s personal and extrajudicial
activities. Rule 21-201. However, judges are members of their communities and are allowed
by the Code to take part in selected activities. The Code recognizes that a judge‘s
participation in community activities provides important benefits to both society and to
judges personally. The Code tries to balance activities that may create an appearance of
impropriety or bias and those activities that are a part of necessary and healthy public life.
Judges may participate in activities sponsored by organizations or governmental entities
concerned with the law, the legal system, or the administration of justice, and those
sponsored by or on behalf of educational, religious, charitable, fraternal, or civic
organizations not conducted for profit. Rule 21-307. Judges often are asked to participate in
activities on behalf of charitable non-profit organizations. The Code permits such activities
with certain limitations, primarily relating to fund-raising activities.
Judges may not be members of organizations that practice invidious discrimination. Rule 21-
306 states, ―A judge shall not hold membership in any organization that practices invidious
discrimination on the basis of race, religion, color, national origin, ethnicity, ancestry, sex,
sexual orientation, gender identity, marital status, spousal affiliation, socioeconomic status,
political affiliation, age, physical or mental handicap, or serious medical condition.‖ If the
judge learns that an organization to which the judge belongs engages in invidious
discrimination, the judge must resign immediately from the organization. Rule 21-306,
commentary [3]. Membership in a religious organization as a lawful exercise of freedom of
religion is not a violation of this rule, commentary [4].
Keeping in the mind the prohibition against using the prestige of the judicial office to
advance the personal or economic interests of the judge or others, probate judges may:
Write a letter of recommendation to a prospective employer or college for a friend‘s
daughter, based on the judge‘s personal knowledge. The judge may use official
letterhead if the judge indicates that the reference is personal and if there is no
likelihood that the use of the letterhead would reasonably be perceived as an attempt
to exert pressure by reason of the judicial office. Rule 21-103, commentary [2]. (The
cautious approach would be not to use court letterhead for the letter.)
Participate in certain activities of non-profit organizations.
Assist in planning fund-raising activities. Rule 21-307A(1).
Solicit contributions only from members of the judge‘s family or other judges. Rule
21-307A(2).
Serve as an usher or a food server or preparer, be part of a theatrical or musical
performance with others, introduce speakers or present awards and perform similar
functions, at fund-raising events. Such activities are not solicitation and do not
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present an element of coercion or abuse the prestige of judicial office. Rule 21-307,
commentary [3].
Accept reasonable compensation for extrajudicial activities permitted by the Code,
but not for performing marriage ceremonies. Rule 21-312.
Accept gifts, loans, bequests, benefits, or other things of value from friends, relatives,
or other persons, unless doing so undermine the judge‘s independence, integrity, or
impartiality, or if the source is who has come or is likely to appear before the judge.
Rule 21-313.
Practical Tip: Compensation received from extrajudicial activities and reimbursement of expenses may be
subject to annual public reporting requirements. See Rule 21-315 for details.
Probate judges may not:
Use court premises, staff, stationery, equipment, or other resources for non-court
activities. Rule 21-301E.
Testify as a character witness for anyone unless the judge is ―duly summoned‖ by
subpoena. Rule 21-303.
Be a member in an organization that practices invidious discrimination. Rule 21-306.
Personally or expressly solicit financial support during an event. Rule 21-307A(3).
Mere attendance at the event does not violate the rule.
Accept any remuneration, including a gratuity, for performing marriage ceremonies.
Rule 21-312, commentary [3].
8.5.1 Exemptions for Probate Judges
Probate judges are not required at any time to comply with:
Rule 21-304 (Appointments to governmental positions)
Rule 21-308A (Appointments to fiduciary positions)
Rule 21-309 (Service as arbitrator or mediator)
Rule 21-310 (Practice of law)
Rule 21-311B (Financial or business activities).
8.5.2 Examples
1. Can a probate judge serve on the board of directors of a local hospital? Answer: Yes,
if the hospital is non-profit, no, if the hospital is private? See Rule 21-307.
2. Can a probate judge serve on the board of the local food bank, a not-for-profit
organization? Answer: Yes.
3. Can a probate judge be named in a will to serve as personal representative of his or
her parent‘s estate? Answer: Yes. See Rule 21-308A.
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4. Can a probate judge speak at a fundraiser for the Friends of the Public Library, a
501(c)(3) non-profit organization? Answer: Yes, the judge can speak but cannot
personally solicit funds, See Rule 21-307A(3).
5. Can a probate judge serve as a part-time tribal judge during the evening? Answer:
Yes, if the evening job does not conflict with the hours and duties required for
probate court. Rule 21-312B.
6. Can a probate judge accept a gift card, box of candy, or other gift as thanks for
performing a marriage ceremony? Answer: No, no matter where or when the
ceremony occurs, the judge may not accept any compensation, except for reasonable
travel expenses, for performing a marriage ceremony. Rule 21-312 commentary [3].
8.6 Political Activity for Probate Judges
The Code of Judicial Conduct limits political activity by judges. Some of the rules do not
apply to probate judges, but many do. In general, probate judges who are not currently
running in an election may:
Engage in political activity on behalf of the legal system, the administration of
justice, and measures to improve the law. Rule 21-401A.
Attend non-fund-raising political gatherings. Rule 21-401B.
Except while serving as a judge, may participate in the activities listed in Rule 21-
401C(1) through (6).
Purchase tickets and attend dinners or other fund-raising events sponsored by political
organizations or candidates. Rule 21-401D. See also Rule 21-401, commentary [9].
Practical Tip: A magistrate judge who allowed the use of the judge‘s name for an endorsement, published
in a local newspaper, of a candidate for reelection as mayor of a municipality violated the
Code of Judicial Conduct. In re Vincent, 2007-NMSC-056, 143 N.M. 56, 172 P.3d 605
(decided prior to 2011 recompilation). See annotations to Rule 21-103 and 21-401.
Although Rule 21-401C(2) about political endorsements does not apply to probate judges
―except while serving as a judge,‖ the cautious approach would be to follow this rule
anyway. Doing so ensures that the probate judge maintains the appearance of even-
handedness in the community. Private political endorsements are permitted by the Code.
Rule 21-401, commentary [8].
8.6.1 Probate Judges as Judicial Candidates
Judicial candidates are allowed to campaign publicly and attend or purchase tickets for
dinners or other events sponsored by a political organization or a candidate for public office.
Rule 41-402A(3)(a)(b).
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The Code contains specific rules for political and campaign activities of judicial candidates
in public elections, mostly relating to fund-raising activities. Candidates for judicial office, in
both partisan and retention elections, shall not personally solicit or personally accept
campaign contributions from any attorney, or from any litigant in a case pending before the
candidate. Contributions from attorneys and litigants shall be made only to a campaign
committee, and are subject to all the requirements of this rule. Campaign committees may
solicit contributions from attorneys. Campaign committees cannot disclose to the judge or
candidate the identity or source of any funds raised by the committee. Rule 21-402E.
8.6.2 Exemptions for Probate Judges
Probate judges are not currently required to comply with Rules 21-401C(1) through (6)
NMRA (Political activity and elections for judges who are not currently running in either a
partisan or retention election) except while serving as a judge. Chapter 13 contains the full
text of these rules.
8.6.3 Examples
1. Before your final fundraiser, you check your opponent‘s last fundraising report
because you do not want to call anyone who has contributed to your opponent. Can
you do this? Answer: No, judicial candidates are not allowed to discover who has
contributed to the campaign of either the judge or the judge‘s opponent. Rule 21-
402A(2)(a).
2. A probate judge decides to run for county assessor. Must he or she resign to run for a
public non-judicial office? Answer: No. Rule 21-405C imposes a ―resign to run‖
requirement on all full-time judges in New Mexico. Since probate judges are not full-
time, it appears that they could run for a public, non-judicial office without resigning
as probate judge.
3. Is a probate judge required to form a campaign committee in a reelection campaign?
Answer: Yes, if the judge plans to raise and spend more than $1,000, a campaign
committee must be formed (Rule 21-402A(1)(e). The requirements for campaign
committees set out in Rule 21-404 must also be followed.
4. An attorney who appears before you offers you a campaign contribution. Can you
accept it? Answer: No. Direct the attorney to the campaign treasurer or member of
the campaign committee. See Rule 21-402E.
5. The county chair of your political party calls and asks you to attend a fundraiser and
to sell tickets. Can you? Answer: You may attend. Probate judges are allowed to
―solicit funds for…or make a contribution to a political organization or candidate,‖
but doing so is probably unwise if you wish to avoid the appearance of impropriety.
See Rules 21-401A and 21-402.
8.7 Disciplinary Action Against Probate Judges
The Code of Judicial Conducts applies to all judges, both at court and outside of court. All
judges who violate the Code of Judicial Conduct are subject to disciplinary action
recommended by the Judicial Standards Commission to the New Mexico Supreme Court.
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The New Mexico Judicial Standards Commission accepts and investigates complaints about
judges from all courts in New Mexico. If the Commission finds a judge has violated the Code
of Judicial Conduct, the Commission may impose a variety of sanctions ranging from
informal reprimands; formal, published reprimands; suspension; or, in cases with severe
violations, removal from the bench.
The Judicial Standards Commission and the New Mexico Supreme Court have disciplined
many judges, including probate judges. In 2001 a probate judge resigned from the bench after
the Commission found she had failed to file and pay gross receipts and income taxes, used
county facilities for personal business, and issued bad checks. In 2004 a probate judge
resigned from the bench after being found legally incompetent to stand trial in a DWI
incident.
In 2012 the Supreme Court removed a probate judge from office. The state‘s Judicial
Standards Commission had found the judge guilty of willful misconduct by a unanimous vote
of all 10 members present following a trial and petitioned the Supreme Court for his removal
from judicial office. The Supreme Court unanimously agreed to the order of removal,
effective immediately. The judge had accepted a copy of a will in lieu of the original
document, and then issued an order of informal probate of the will and an appointment of a
personal representative. The judge falsely indicated the original will was in the court‘s
possession. He knew his order was invalid and that the personal representative lacked
authority to act in the case, but he signed the order because she was his neighbor. To correct
his mistake, he asked the clerk if she could shred all documents in the case. The commission
found that the judge violated numerous provisions of the Code of Judicial Conduct. Although
the judge‘s action was an isolated instance, the commission said that the multiple instances of
dishonesty reflected on the judge‘s character and fitness for judicial office.
Summaries of judicial disciplinary actions are online at:
http://www.nmjsc.org/docs/disciplinaryactions.pdf
Probate judges should be very careful not to exceed their authority. They do not have
jurisdiction over contested probates, formal proceedings, missing persons, minors,
property disputes, trusts, guardianships or conservatorships and should not act on
these issues. The best way to avoid investigation by the Judicial Standards Commission is to
follow the law and conduct oneself with integrity, honesty, and humility at all times, not just
while at court. The Code of Judicial Conduct, included in full in Chapter 13, should provide
ample guidance so that judges can determine what activities are allowed and prohibited.
Practical Tip: A judge may consult ethics advisory committees, outside counsel, or legal experts
concerning the judge‘s compliance with this Code without giving notice to anyone. See
Rule 21-209, commentary [7]. Judges who have questions about the Code of Judicial
Conduct should contact Judge James J. Wechsler, New Mexico Court of Appeals, P.O. Box
2008, Santa Fe, NM 87504-2008, (505) 827-4908.
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8.8 Unauthorized Practice of Law
There is a fine line between providing legal information and giving legal advice. Providing
information is allowed; giving legal advice is not. Be careful!
8.8.1 Providing Forms v. Filling Out Forms
Judges and their staff can answer questions about the do-it-yourself probate forms and
procedural requirements of the court. They can explain court procedures and talk about laws
in general, but should not interpret the law for the public. They can explain the difference
between testate and intestate estates without giving legal advice and assist pro se applicants
in identifying the correct packet to purchase. They can cite basic laws regarding titles to
probate and property. They can hand out copies of New Mexico laws and samples of
affidavits, which the applicant can then interpret or fill out. The judge or staff can allow a
person with questions to examine a previously filed probate case file to see how the
paperwork is filled out. NEVER ALLOW ANYONE TO REMOVE A COURT FILE FROM
THE COURT!
These issues often arise at the county clerk and assessor‘s offices, as well as the probate
courts. It is almost always more appropriate to answer questions in general terms and
not as they apply to specific situations. For example, it is appropriate for a judge to say, ―I
am not allowed to give you legal advice, but I can tell you that the law says that a joint
tenancy deed to a house means that the house passes to the surviving joint tenant at the death
of the first joint tenant and should not require a court probate,‖ instead of saying ―I think the
joint tenancy would pass the house to your mother.‖ It is probably also appropriate to say, ―I
am not allowed to give you legal advice, but New Mexico law says that a bank account with
a ‗payable on death‘ beneficiary designation passes to that beneficiary upon the death of the
account owner. A financial institution will have information about how to claim a bank
account.‖
While it is appropriate to explain basic probate law requirements and the use of
probate forms, judges and their staff cannot fill out the forms, prepare deeds, or
prepare affidavits or other documents for anyone.
Practical Tip: Judges and their staff are often asked by pro se applicants and other members of the public
for guidance and advice. Often questions relate to real property, such as houses and ranches.
The judge and staff should not give legal advice about real property to anyone. Instead,
suggest the person seek information and guidance from a reputable attorney or title
company.
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8.8.2 Paralegals
Probate judges who have paralegals helping them with court business should be aware that
the New Mexico Supreme Court approved a rule about using paralegals. The rule allows
court paralegals to explain forms but not to fill them out for a pro se applicant. NMRA Rule
20-103 reads:
A paralegal shall not:
A. provide legal advice;
B. represent a client in court except to the extent authorized by law;
C. select, explain, draft, or recommend the use of any legal document to or for
any person other than the attorney who supervises the paralegal, unless the
supervising attorney or judge, in the case of paralegals employed by the
courts, so directs; or
D. engage in conduct that constitutes the unauthorized practice of law;
E. contract with, or be employed by, a natural person other than an attorney to
perform paralegal services except to the extent authorized by law;
F. in connection with providing paralegal services, induce a person to make an
investment, purchase a financial product or service or enter a transaction from
which income or profit, or both, purportedly may be derived;
G. establish the fees to charge a client for the services the paralegal or the
attorney performs. Such fees shall be established by the attorney who
supervises the paralegal's work. This paragraph does not apply to fees charged
by a paralegal in a contract to provide paralegal services to an attorney, law
firm, corporation, governmental agency or other entity; or
H. perform any services for a consumer except as performed under the
supervision of the attorney, law firm, corporation, government agency, or
other entity that employs or contracts with the paralegal. Nothing in this
paragraph shall prohibit a paralegal who is employed by an attorney, law firm,
governmental agency, or other entity from providing services to a consumer
served by one of these entities if those services are expressly allowed by
statute, case law, court rule or federal or state administrative rule or
regulation. As used in this paragraph, "consumer" means a natural person,
firm, association, organization, partnership, business trust, corporation or
public entity.
8.8.3 Unauthorized Practice of Law (UPL) Statutes
Non-lawyers can prepare their own legal documents, but cannot prepare legal documents for
anyone else. Updated laws have added damages recoverable by those injured, as well as civil
penalties up to $5,000 that can be imposed on those who violate the unauthorized practice of
law laws.
New Mexico‘s laws about the unauthorized practice of law state:
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Section 36-2-27 Practice without admission; contempt of court; foreign attorneys.
No person shall practice law in a court of this state, except a magistrate court, nor shall a
person commence, conduct or defend an action or proceeding unless he has been granted a
certificate of admission to the bar under the provisions of Chapter 36 NMSA 1978. No
person not licensed as provided in that chapter shall advertise or display any matter or
writing whereby the impression may be gained that he is an attorney or counselor at law or
hold himself out as an attorney or counselor at law, and all persons violating the provisions
of that chapter shall be deemed guilty of contempt of the court in which the violation
occurred, as well as of the supreme court of the state; provided, however, that nothing in this
section shall be construed to prohibit persons residing beyond the limits of this state,
otherwise qualified, from assisting resident counsel in participating in an action or
proceeding.
Section 36-2-28.1 Unauthorized practice of law; private remedies.
A. A person likely to be damaged by an unauthorized practice of law in violation of Section
36-2-27 NMSA 1978 may bring an action for an injunction against the alleged violator. An
injunction shall be granted pursuant to the principles of equity and on terms that the court
considers reasonable. Proof of monetary damage or loss of profit is not required for an
injunction to be granted pursuant to this subsection.
B. A person who suffers a loss of money or other property as a result of an unauthorized
practice of law in violation of Section 36-2-27 NMSA 1978 may bring an action for the
greater of actual damages or one thousand dollars ($1,000) and for the restitution of any
money or property received by the alleged violator, provided that if the court finds that the
alleged violator willfully engaged in the unauthorized practice of law, the court may award
up to three times the actual damages or three thousand dollars ($3,000), whichever is greater.
C. A person bringing an action pursuant to Subsection A or B of this section shall, if the
person prevails, also be awarded attorney fees and costs.
D. The relief provided by this section is in addition to other remedies available at law or
equity.
Section 36-2-28.2 Unauthorized practice of law; action by attorney general or bar
association.
A. Whenever the attorney general, the state bar of New Mexico or a local bar association
authorized by the state bar of New Mexico to prosecute actions related to the unauthorized
practice of law has reason to believe that a person has engaged in the unauthorized practice
of law in violation of Section 36-2-27 NMSA 1978 or has aided or abetted another person in
the unauthorized practice of law and the initiation of legal proceedings would be in the public
interest, the attorney general or bar association may bring an action in the name of the state
against the alleged violator. The action may be brought in the district court for the county in
which the alleged violator resides or has a principal place of business or in the district court
for a county in which the alleged violation took place. In an action brought pursuant to this
section, in addition to civil penalties, the attorney general or bar association may petition the
court for a temporary or permanent injunction and restitution and, if seeking a temporary or
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permanent injunction, the attorney general or bar association shall not be required to post
bond.
B. In lieu of filing or continuing an action pursuant to this section, the attorney general or bar
association may accept a written assurance of discontinuance of the unauthorized practice of
law from the alleged violator. The assurance may contain an agreement by the alleged
violator that restitution of money or property received from them in any transaction related to
the unauthorized practice will be made to all persons, provided that a person harmed by the
unauthorized practice is not required to accept restitution. If the offer of restitution is
accepted, the person accepting the restitution is barred from recovering damages from the
alleged violator in an action based upon the same unauthorized practice.
C. In an action brought by the attorney general or bar association pursuant to this section, if
the court finds the alleged violator engaged in the unauthorized practice of law, the court may
impose a civil penalty not to exceed five thousand dollars ($5,000) per violation. In addition,
if the court finds that a person has aided or abetted another to engage in the unauthorized
practice of law, the court may impose a civil penalty not to exceed one thousand dollars
($1,000) for the first violation and a civil penalty not to exceed five thousand dollars ($5,000)
for each subsequent violation.
8.8.4 Examples of Unauthorized Practice of Law Related to Probate
Probate judges may encounter people who are engaging in the unauthorized practice of law
in their courts. Individuals who are not attorneys but who assist others in:
preparing probate forms for an applicant
preparing a deed to real property
telling an applicant who the heirs are or giving other legal advice
drafting a will, whether or not the will is invalid
preparing a small estate or homestead affidavit
are engaging in the unauthorized practice of law.
Practical Tip: Probate judges who are not attorneys should not give legal advice or assist others in
preparing any legal documents. Probate judges who are licensed attorneys may practice law,
but may not give legal advice to or prepare legal documents for people who have filed cases
in their courts.
When a non-lawyer prepares legal documents for others without being supervised by an
attorney licensed in New Mexico, it is the "unauthorized practice of law." It is a violation in
New Mexico for a non-lawyer to prepare a will, trust, probate form, or other legal document
without an attorney's help or supervision. New Mexico‘s laws impose damages and civil
penalties upon those who are found guilty of violating the law.
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Individuals, including personal representatives, may prepare their own wills, living trusts,
and probate forms. If a paralegal or other non-lawyer prepared a will, trust, or probate form
without the supervision of an attorney licensed in New Mexico, the documents might be
valid if they were properly drafted and notarized. But any non-lawyer who prepares legal
documents for another person is still violating state law in doing so.
If a judge encounters a paralegal or other non-lawyer individual who is practicing law
without a license and drafting legal documents without the supervision of an attorney, the
judge should notify State Bar of New Mexico, Office of the General Counsel P.O. Box
92860, Albuquerque, NM 87199-2860, (505) 797-6050. The State Bar, with the help of the
Disciplinary Board, is tracking complaints, providing information, and developing
procedures to implement its provisions under the UPL statute.
8.8.5 Pro Hac Vice (Non-New Mexico Attorneys)
Probate judges may encounter an out-of-state attorney who is filing a case for a client in the
probate court. For example, an attorney licensed in Texas may wish to file a case in a New
Mexico probate court or district court. Practice by non-admitted lawyers before state courts is
allowed if certain rules and procedures are followed.
A non-admitted attorney wishing to appear in a state court is governed by Rule 24-106
NMRA. The non-admitted attorney may appear on behalf of a party in any civil proceeding if
the attorney meets certain requirements and follows an application procedure. The pro hac
vice requirements are:
The non-admitted attorney must be authorized to practice law before the highest court
of record in any state or country;
The non-admitted attorney must associate with an active member, in good standing,
with the State Bar of New Mexico;
The non-admitted attorney must certify they will comply with applicable statutes,
laws, procedurals rules and the rules for Professional Conduct and Discipline; and,
The non-admitted attorney must submit to the jurisdiction of the New Mexico courts
and disciplinary board with respects to acts or omissions occurring during the
attorney‘s admission under this rule.
Currently there is no limit on the number of times an attorney can appear under this rule, but
the attorney must apply separately for each civil action suit or proceeding in which the
attorney intends to appear. Also note that the Rules of Professional Conduct, specifically
Rule 16-505 (D) NMRA, do not allow a non-admitted attorney to establish an office or other
systematic and continuous presence in this jurisdiction for the practice of law; or hold out to
the public or otherwise represent that the lawyer is admitted to practice law in this
jurisdiction.
The pro hac vice application procedure is a three-step process that is covered under Rule 24-
106 NMRA and the Rule of Civil Procedure 1-89.1 NMRA.
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1. File a Registration Certificate with the State Bar of New Mexico – Office of General
Counsel. The registration certificate contains contact information, case and local
counsel information and the required certifications.
2. Pay a non-refundable fee – currently $250 which is held by the State Bar in a special
fund to support the delivery of civil legal services to the poor. Fee waiver requests
can be made in the following situations:
certification that the attorney is employed by a governmental authority and
will be appearing on behalf of a governmental authority;
certification that the attorney is employed by and agency providing legal
service to indigent clients and will be appearing on behalf of an indigent
client;
certification that the attorney is appearing on behalf of an indigent client and
will be charging no fee for the appearance.
3. File an affidavit with the Court stating they are admitted to practice law and are in
good standing to practice law in another state or country and that they have complied
with Rule 24-106 NMRA. The affidavit shall be files with the first paper filed in the
court or as soon as practicable after a party decides on representation by a non-
admitted counsel.
Information, including copies of the rules, registration certificate and a sample affidavit can
be obtained online at www.nmbar.org or by calling the Office of General Counsel at the State
Bar of New Mexico, (505) 797-6050.
8.9 Safety Valves for Probate Judges
Probate judges may find the following suggestions helpful:
Use the sample alternative forms in Chapter 4 or pro se forms as templates, i.e.,
compare the submitted paperwork to the forms.
The Code of Judicial Conduct, Rule 21-209A(2) allows judges to obtain the written
advice of a disinterested expert on the applicable law but must give written notice to
the parties involved.
Section 45-3-305 allows judges to decline an application for any reason. The case can
still proceed as a formal probate in the district court.
Section 45-3-309 allows a judge to decline an application for appointment of personal
representative for any reason. The case can still proceed as a formal probate in the
district court.
If people complain that a judge is doing or not doing something, judges can explain
that probate courts are courts of limited jurisdiction and that judges have sworn to
follow the Constitution and laws of New Mexico.
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Judges should not allow an attorney or anyone else to pressure them to do
something that the judge knows is not within the scope of a probate judge’s job
or is contrary to the law. It is the judge’s responsibility to review the case, apply
the law, and not exceed his/her jurisdiction. The judge can transfer any case for
any reason to the district court for a formal proceeding.
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9-1
CHAPTER 9
Real Property as Part of Estate
This chapter covers:
Overview of estates with real property.
Probates with real property in New Mexico but outside of the probate court‘s county.
Probates with real property located outside of New Mexico, including simultaneous
probates, ancillary proceedings and proof of authority.
Manufactured (mobile) homes as part of an estate.
Flowcharts on decedents with real property as part of the estate, and out-of-state
decedents.
Differences between proof of authority and an ancillary/dual proceeding.
9.1 Overview of Estates with Real Property
Note: Throughout this chapter, the term ―probate‖ applies to probates of estates with wills and
also administration of estates without wills.
Estates that own real property (such as land, houses, farms, ranches, mobile homes that have
been made into real property, leases, oil, gas, and other minerals, water rights and timber rights)
may require additional court procedures to pass clear title to the heirs or devisees.
The general rule is that change of title to real property, including all assignments or other
instruments of transfer of royalties in the production of oil, gas or other minerals on any
lands in this state, must be recorded in the clerk’s office of the county of the state where
each piece of real property is located.
This includes real property titled as joint tenants with right of survivorship. Upon the death of
one joint tenant, the property passes to surviving joint tenant(s) without a probate or court
proceeding. Joint tenancy title may appear as ―joint tenants,‖ ―joint tenants with right of
survivorship,‖ or ―jtwros.‖ Any of these is a permissible joint tenancy designation on a deed to
real property. In cases involving a joint tenancy deed to real property, the decedent joint tenant‘s
death should be evidenced by an affidavit of death recorded in the county clerk‘s office in the
county where the property is located. The title companies that record the affidavit of death will
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often review the original death certificate and will file an affidavit showing the name of the
decedent, the location of death, the name of the spouse, if any, and the name of the informant of
the death. This recording gives notice of the death to others searching the history of the real
property that one joint tenant is deceased.
Unless restricted by the terms of a decedent‘s will (or the terms of a supervised administration),
the personal representative may use, sell, or restrict the use of a property's natural resources, such
as timber or minerals lying beneath the surface. However, natural resources, such as surface and
underground water, oil, and gas, move about without regard to property lines. Use and removal
of the rights to the natural resources is subject to state and federal regulations. The personal
representative dealing with or passing title to such property should consult an attorney regarding
these matters.
The personal representative appointed by a district court or probate court has legal authority to
sell real property or to transfer title to it via a ―Personal Representative‘s Deed” from the estate
to the new owner(s). This deed must be signed by the personal representative in the presence of a
notary public, who then notarizes the deed. The notarization must be in the form of an
―acknowledgment.‖ The deed should be delivered to the new owner who should record it. The
authority for the personal representative to execute this deed is found in Section 45-3-907.
Practical Tip: Probate judges should never assist anyone in filling out a Personal Representative‘s Deed or
any other deed or legal documents!
It is the responsibility of the new owner(s) of the real property to inform the county
assessor’s and treasurer’s offices about the change in ownership of the property.
9.2 Probate Opened in Your County, with Real Property
Located in New Mexico but Outside of Your County
Section 45-1-404 pertains to real property outside the county of administration of the estate. It
states:
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 & title of the personal representative; and\
(6) a complete description of the real property situate in such county.
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9.3 Real Property Located Outside of New Mexico
If the estate involves real property, including oil, gas and other mineral rights, located outside of
New Mexico, the personal representative of the estate may need to file a separate probate in the
county in the state where the real property is located. These kinds of probates are sometimes
called ancillary proceedings. The personal representative could contact the court and/or the
county clerk's office in the state where the property is located for more information about how to
proceed, but most often contact will need to be made with an attorney in the other state to
determine what needs to be done. The Internet can provide access to some of this information.
Researching the procedure necessary to pass real property located outside of New Mexico is
beyond the scope of the probate judge‘s duty!
For instance, suppose the decedent died domiciled in New Mexico, but owned real estate, oil, gas
or other mineral rights, in Oklahoma, New York, Texas, or another location outside of New
Mexico. This situation is different than when a decedent died domiciled outside of New Mexico,
but owned real estate, oil, gas or other mineral rights within New Mexico. In the first
circumstance, an ancillary proceeding would probably be required in the other state, depending
on that state‘s law. In the second circumstance, the personal representative could file a probate
action in New Mexico where venue would be proper under Section 45-3-201(A)(2) if no other
probate had been opened in the state of domicile. However, if a probate is already opened in the
state of domicile, then filing a proof of authority, authorized by Section 45-4-204, and providing
the required authenticated copies of documents should give the personal representative authority
to transfer the New Mexico property. Also, it appears that reading Sections 45-3-303(D) and 45-
3-308(C) allow dual probates in two states at the same time, which is different than an ancillary
probate. Dual probates are discussed in the next section.
Practical Tip: Remember that New Mexico law now allows judges to accept certified copies of documents
from other states. The definition of authenticated copies includes certified or exemplified
documents. Section 45-1-201A(3). Other states may contain to require triple certification,
authenticated copies of documents from the probate court for use in the out-of-state court.
9.3.1 Simultaneous (Dual) Probates in Two Different States
The Uniform Probate Code allows two probates in two different states to proceed at the same
time under certain circumstances. If a decedent is not a resident of New Mexico, the probate
court shall delay the order of appointment of a personal representative until 30 days have elapsed
since the decedent‘s death. Section 45-3-307. However, this 30-day delay does not apply if the
personal representative appointed in the other state is also the applicant in the probate case filed
in the New Mexico court. Section 45-3-307. See also Section 45-3-815, which addresses claims
against an estate that is being administered in more than one state.
An informal probate of a will that has been previously probated in another state or foreign
country may be granted at any time upon written application by any interested person, together
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with an authenticated copy of the will and of the order or statement probating it from the office
or court where it was first probated (see Section 45-3-303D). At least one reputable attorney has
interpreted this section to be used to admit a foreign will to probate in New Mexico. However,
this attorney did not think that Letters Testamentary would be issued by the New Mexico court in
this instance. Other attorneys disagree, and think that the case would proceed like a regular
probate, with the will admitted to probate, a personal representative appointed, and Letters
issued.
However, if the applicant is the domiciliary personal representative (a personal representative
appointed in the jurisdiction where the decedent was domiciled at the time of his death) and the
decedent was not domiciled in New Mexico, informal appointment proceedings may be allowed.
Section 45-3-308(C). In this instance, Letters Testamentary or Letters of Administration would
be issued by the court.
9.3.2 Ancillary Proceedings
Ancillary proceedings are probate proceedings conducted in a state other than the state where the
decedent resided at the time of death. Ancillary proceedings are usually necessary if the decedent
owned real property in another state. For example, suppose a decedent was domiciled in New
Mexico at the time of death, but owned real property in Colorado. A probate is filed in New
Mexico. An ancillary proceeding could be opened in Colorado to pass title to the Colorado
property to the decedent‘s heirs or devisees.
Section 45-4-207 discusses ancillary proceedings in a formal proceeding. Under this section, the
district court could issue Letters to a foreign personal representative who needed power to act in
New Mexico. Probate judges do not have jurisdiction over formal ancillary proceedings.
Ancillary proceedings are rarely necessary because proofs of authority, discussed below, are
usually sufficient.
9.4 Proof of Authority
If an out-of-state decedent owned real or personal property located in New Mexico that needs
New Mexico authority to transfer, a domiciliary foreign personal representative of a nonresident
decedent or his/her attorney can use a proof of authority, pursuant to Section 45-4-204. The
proof of authority is documentation filed with the court that shows a person has been appointed
as personal representative by a court in another state. Requirements to use a proof of authority
are:
Personal representative appointed in another state.
Need to transfer real or personal property in New Mexico.
The personal representative from other state files in the court in the county where the property is
located:
Authenticated copies of his appointment and of any bond he has given.
A statement of the domiciliary foreign personal representative‘s address.
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A personal representative or his/her attorney files a proof of authority with the probate or district
court. A case number is assigned and docket fee is collected, using the same procedure as any
other appointment or probate proceeding filed with the court. The documentation required for a
proof of authority is filed with the court, and the court clerk keeps the original copies, file-
stamping the originals as outlined in Chapter 4, Section 4.4. Copies of documents should be
endorsed-filed stamped and returned to the applicant, the same as any other pleading filed with
the court.
Proof of authority does not involve opening a full probate, although the person filing the proof of
authority pays the usual court filing fee. The applicant does not need to submit a death certificate
for the decedent if a court case has already been opened in another state.
No order is signed and no Letters are issued. Even if a person asks for Letters, the probate judge
should NOT issue Letters Testamentary or Letters of Administration in a proof of authority case!
Filing the proof of authority with the probate court gives a personal representative appointed in
another state the authority to act in New Mexico to transfer real property located in New Mexico.
A proof of authority is usually sufficient for some title companies. If it is not sufficient authority
for the transaction, then an ancillary proceeding can be used. Charts outlining the procedures to
use for out-of-state decedents and the differences between Proof of Authority and ancillary
proceedings are at the end of this section of the manual.
Practical Tip: Proofs of authority could also be used to transfer oil and gas rights in New Mexico that
were owned by a nonresident decedent.
9.5 Manufactured (Mobile) Homes as Part of Estate
Some people think that manufactured (mobile) homes are real property, and in some cases they
are. Since most manufactured (mobile) homes are moveable, they are considered personal
property like automobiles and must be registered and licensed like motor vehicles. They
originally have license plates like motor vehicles. Unless they are permanently affixed to the
ground, manufactured (mobile) homes receive a title from the Motor Vehicles Division (MVD).
If they are permanently affixed to the ground and no longer have a license, then they are real
property.
Often, if a manufactured (mobile) home is still personal property and is titled in the sole name of
the decedent, MVD will allow the personal representative to transfer title through a form, called
―Certificate of Transfer Without Probate,‖ Form Mvd10011. This Certificate is similar to an
―Affidavit of Successor in Interest,‖ discussed in the Judge‘s Glossary, above, and in Section 45-
3-1201. MVD employees aren‘t always aware that this form exists, so check MVD‘s website,
http://www.mvd.newmexico.gov/SiteCollectionDocuments/assets/mvd10011.pdf
for more information. See also Sections 66-1-4.11, 66-6-10.
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9.6 Flowchart: Decedent Domiciled in New Mexico with Real
Property as Part of the Estate
The PR must execute a
Personal Representative‘s
Deed transferring each piece
of property before closing the
Estate. The deed must be
recorded with the County
Clerk‘s Office in that county.
Judges cannot tell the PR
how to prepare the deed.
People should seek legal
advice if they require
additional assistance.
The PR should seek
assistance from an attorney
licensed to practice in the
other state to determine the
requirements for transferring
real property in that state.
Judges cannot determine
what procedure the PR
should use.
The PR must execute a Personal
Representative‘s Deed
transferring each piece of
property before closing the
Estate. The deed(s) must be
recorded with the County Clerk‘s
Office in that county. Judges
cannot tell the PR how to
prepare the deed. People
should seek legal advice if they
require additional assistance.
The PR will need to record a
Notice of Probate
Administration (see 45-1-404)
with the County Clerk‘s office
in any other county where
property is located. Judges
can tell the PR what
information the statute
requires, but cannot
prepare the Notice for the
PR.
Is the real property located in
the county of administration?
IF NO, STOP HERE. IF
YES:
Is the real property located in
another county in New
Mexico? IF NO, STOP
HERE. IF YES:
Is the real property
located in another state?
IF NO, STOP HERE. IF
YES:
Does any of the real property require a transfer of
title? IF NO, STOP HERE. IF YES:
Decedent Domiciled in New Mexico with Real Property
as Part of the Estate
A certified copy of the
PR Deed may be
included in the court file
for reference purposes,
but it is not required.
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9.7 Flowchart: Out-of-State Decedent
The probate court cannot tell the applicant/personal
representative which option to use. The person may
need to obtain legal advice.
*Authentication in New Mexico means certified or exemplified. New Mexico courts can accept certified
copies of court documents from other states. In states other than New Mexico, authentication may require
a triple certification used to prove the authenticity of a document so that it can be used as evidence. See
Chapter 10 for instructions for authenticating documents required by another state.
Out-of-State Decedent
Has a probate or administration already been opened in another state?
YES NO
IF YES, is the case in the
other state still open?
IF NO, an original probate or administration
proceeding can be opened in any county in New
Mexico where property of the decedent is located at
the time of decedent‘s death (see 45-3-201(A)(2)).
However, remember the three-year rule discussed in
Chapter 4.
IF NO, a New Mexico case can be opened in any
county in New Mexico where property is located. If
there is a Will, an authenticated* copy of the
probated will and order should be entered into the
proceeding in New Mexico (see 45-3-303(D)).
IF YES, there are three options:
Option #1: Proof of
Authority (see 45-4-
204). If the title
company accepts
this, stop here; if not,
go to Option #2.
Option #2: Concurrent
proceedings in 2 states
(see 45-3-303(D) and
45-3-308(C)).
Option #3: Formal
Ancillary Proceeding
(see 45-4-207).
See the “What are the Differences Between a Proof
of Authority and an Ancillary or Dual
Proceeding” chart for more information on these
proceedings.
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9.8 Table: Differences Between Proof of Authority and Ancillary
or Dual Proceeding
WHAT ARE THE DIFFERENCES BETWEEN A PROOF OF
AUTHORITY AND AN ANCILLARY OR DUAL PROCEEDING?
Key Questions
Proof of Authority
Ancillary or Dual Proceeding
WHERE is it filed?
Filed in each county where
property is located.
Filed in any county where
property is located.
WHEN is it filed?
Filed while original domiciliary
probate is open.
Filed while original domiciliary
probate or administration is open.
WHO files it?
Domiciliary foreign personal
representative files the Proof of
Authority.
Usually foreign PR but could be
someone else if proper consent is
provided.
IS A CASE OPENED?
No probate or administration
proceeding occurs but the court
filing fee is paid and a case
number is assigned.
Probate or administration
proceeding is open.
WHAT DOCUMENTS need
to be filed?
Proof of Authority with a
statement including domiciliary
foreign personal representative‘s
address (see 45-4-204).
Pleadings filed are the same as for
a New Mexico resident, with
some modifications to language
on the pro se probate forms.
WHAT DOCUMENTATION
is required?
Authenticated copies of any
bond given and appointment
documents are attached to Proof
of Authority (see 45-4-204).
Authenticated copies of
appointment documents are
submitted with Application for
Appointment.
ARE LETTERS ISSUED?
No Letters Are Issued.
Letters are Issued.
HOW IS IT CLOSED?
No probate or administration
was opened, so no Verified
Statement is filed. The
domiciliary PR may file a copy
of any closing documents from
the domiciliary proceeding in the
other state, but this is not
required.
An Ancillary Proceeding is
closed in the same manner as a
regular probate or administration
proceeding.
The probate court cannot advise the personal representative on
which proceeding is appropriate, only the differences between them.
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CHAPTER 10
Miscellaneous Topics
This chapter covers:
Bonds.
Agreements among successors and disclaimer statutes.
Family/personal property allowances and omitted spouse or children.
Collection of the decedent‘s final paycheck and creditors‘ claims and demands for notice.
Trusts, cremation law and wrongful death claims.
Notarial acts and oaths, and powers of attorney.
Missing heirs and unclaimed property.
Authenticated v. certified copies with a sample form.
Small estate affidavits and transfer of homestead affidavits.
10.1 Bonds
Generally, no bond is required of a personal representative who is appointed in an informal
proceeding. Section 45-3-603.A decedent‘s will may require the personal representative to post a
bond to insure proper execution of his or her fiduciary duties. Someone may demand a bond.
Bonds are usually only imposed by district courts in formal proceedings involving contested or
supervised cases. However, a personal representative can file any required bond with either the
probate or district court. Section 45-3-601.
Any interested person, including a creditor, with an interest in the estate in excess of $7,500 may
demand that a personal representative give bond, even when the decedent‘s will did not require a
bond. Section 45-3-605. The demand may be filed with either court. The personal representative
shall then post a bond. If he or she does not want to do so, then the personal representative must
petition the district court to determine the bond requirement. Section 45-3-605.
Terms and conditions of bonds are spelled out in Section 45-3-606.
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10.2 Agreements Among Successors
Despite the principle that the intent of the testator is all-important, New Mexico law allows
successors to the estate to agree among themselves to alter the interests, shares or amounts to
which they are entitled under the will of the decedent, or under the laws of intestate succession,
subject to the rights of creditors and taxing authorities, competent successors. All affected must
sign a written contract to alter their shares. While the law does not require it, a copy of this
agreement should be filed in the court file. Otherwise, problems could arise later if a dispute
occurred over the distribution of the property. Section 45-3-912.
This agreement is not used very often. One example might be if one child of decedent provided
care during the decedent‘s lifetime and the other children wanted to alter the intestate share to
give the caretaker child more than the law allowed. All of the children could decide what
percentages each of them were to receive and all could sign a written agreement outlining the
percentages. This agreement might also be used when a personal representative of the estate,
with the consent of all other heirs or devisees, deeds the real property to himself/herself, perhaps
after buying out the other heirs‘ or devisees‘ shares. A written agreement would help to avoid
future challenges.
The probate judge cannot draft this agreement for the successors, but can only accept it as part of
a probate filing. The judge should not help people modify the initial probate application forms to
refer to an agreement. Hiring a reputable lawyer to help draft the agreement would be the best
approach. Further, judges should not advise people to disregard a testator‘s intent. A judge or
staff might hand out copies of Section 45-3-912 without giving a legal opinion or advice.
Remember that the Judicial Standards Commission disciplines judges for not following the law,
including the unauthorized practice of law, so be very careful to avoid giving legal advice to
people.
10.3 Disclaimer Statutes
Disclaimer means the refusal to accept an interest in or power over property. Section 45-2-
1102C. Disclaimers are used when someone who is supposed to receive decedent‘s property does
not want it (for tax or other reasons). Disclaimers must comply with federal Internal Revenue
Code requirements and New Mexico‘s Uniform Disclaimer of Property Interests Act, Sections
45-2-1101 through 45-2-1116.
A disclaimer must be in a writing or other record, declare the disclaimer, describe the interest or
power disclaimed, be signed by the person making the disclaimer, and be delivered or filed in the
manner provided in Section 12 [45-2-1112 NMSA 1978] of the Uniform Disclaimer of Property
Interests Act. "Record" means information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in perceivable form. Section 45-2-
1105C. The person making the disclaimer cannot use or benefit from the disclaimed property.
The delivery or filing provisions of New Mexico‘s disclaimer law are listed in Section 45-2-
1112. Disclaimers are not something a probate judge should be involved in, other than referring
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people to New Mexico‘s disclaimer statutes. People who are making a qualified disclaimer for
tax purposes must also comply with the requirements of the Internal Revenue Code, which
may contain time limits for making a disclaimer. This topic is outside the scope of the
manual.
It is possible that someone could open a case in probate or district court for the sole purpose of
filing a disclaimer. The docket fee would still be paid and the case would be docketed as if it
were a regular probate case. No further filings relating to the disclaimer appear to be required.
The probate court can require an original death certificate as part of the disclaimer paperwork.
10.4 Family/Personal Property Allowances
New Mexico law contains two sections that reserve a certain amount of money, called
―allowances,‖ from the estate for spouses and children of decedents who lived in New Mexico.
New Mexico law allows a family allowance of $30,000 of decedent’s estate for the surviving
spouse (Section 45-2-402). If decedent has no surviving spouse, then decedent‘s minor and
dependent children share the $30,000 in equal shares. This family allowance is exempt from and
has priority over all claims against the estate, including creditors‘ claims. Even if the estate has
debts, creditors cannot touch this $30,000, if the decedent left a spouse and/or minor and
dependent children. The family allowance is in addition to any inheritance that passes to the
spouse and minor/dependent children, unless a will states otherwise. Adult children are not
entitled to the family allowance.
New Mexico also allows a $15,000 personal property allowance for decedent’s surviving
spouse (Section 45-2-403). Items of household furniture, automobiles, appliances and personal
effects worth $15,000 can satisfy this allowance. Other types of decedent‘s estate property, both
real and personal, such as cash or other assets of the estate, can be used to satisfy this allowance
if decedent‘s personal effects are not worth $15,000. If decedent has no surviving spouse, then
decedent‘s (1) children named in a will, (2) any omitted children of decedent, or (3) children who
are decedent‘s intestate heirs share the $15,000. Children specifically and intentionally omitted
from a will are not eligible for a portion of the $15,000. This personal property allowance is
exempt from and has priority over all claims against the estate, except for the family allowance.
This means that the spouse or children have priority over creditors to the $15,000. This personal
property allowance is in addition to any inheritance that passes to the spouse and children, unless
a will or other governing instrument states otherwise. Minor, dependent, and adult children are
all entitled to share the personal property allowance, if there is no surviving spouse. They do not
each receive $15,000, but instead split $15,000 among however many recipients there are.
The family and personal property allowances apply whether or not a will exists. The
allowances may also apply in the case of a legal separation, although deciding this issue is
outside the scope of the probate judge‘s powers. In the case where a couple is informally
separated, but no legal action has occurred, the allowances would apply.
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Practical Tip: The recipients of the allowances do not have to file a claim to receive the allowances. It is
the personal representative‘s job, and not the judge‘s job, to make sure the allowances are
paid to the proper recipients, if any, see Section 45-3-703D. Judges and staff can give
people copies of the laws governing allowances, but should not advise people on who is
entitled to receive the allowances.
A New Mexico case, In re the Estate of Jewell, 130 N.M. 93 (Ct. App. 2001), interprets these
allowances, to be absolute, and to supersede any contrary intentions expressed in the will of the
decedent; they can only be overridden by expressed written waiver signed by the surviving
spouse. The Jewell case ruled that the surviving spouse is absolutely entitled to the allowances
even if the decedent's will expresses contrary intentions. Thus, a spouse cannot, through
language in a will, unilaterally disinherit the other spouse from receiving the allowances.
Another New Mexico case, Bell v. Estate of Bell, 143 N.M. 716 (Ct. App. 2008), ruled in part
that a decedent‘s surviving spouse was entitled to statutory allowances even though she received
other transfers of property and even though most of the decedent‘s estate passed through a trust,
rather than probate. The case implies that a trust can be invaded to pay statutory allowances.
Section 46A-5-505A(3) of New Mexico‘s Uniform Trust Code states that the property of a trust
is subject to claims for the statutory allowances.
If a spouse voluntarily agrees in writing, before or after marriage, to waive his or her right to the
allowances, they could be waived. One may still state in one's will that the surviving spouse may
not receive more than the family and personal property allowances.
The assets of decedent's probate estate may be insufficient to pay the allowances. If so,
beneficiaries of "payable on death" accounts, property passing through a "transfer on death"
deed, and possibly "transfer on death" stock and security accounts can be compelled to return
those assets to pay the allowances.
If a decedent's gross estate were worth less than $45,000, the allowances received by the
surviving spouse or children would only be the amount in the estate. Creditors would be out of
luck, and a short-cut, called a summary administration, could be used to close the estate. Sections
45-3-1203, 1204.
A 2012 New Mexico case ruled that the family and personal property allowances can only be
claimed by a surviving spouse. If the surviving spouse does not claim the allowances during
his/her lifetime, the allowances do not transfer to his/her heirs. See Duran v. Vigil, 2012-NMCA-
121 (Ct.App. 2012). The case can be read at
http://www.nmcompcomm.us/nmcases/NMCA/2012/12ca-121.pdf.
Important Note: The family and personal property allowances only apply to the estates of decedents who
are domiciled in New Mexico. The rights to allowances for out-of-state decedents are
determined by the laws of the decedent‘s domicile state. Section 45-2-401.
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10.5 Omitted Spouse and Children
Sections 45-2-301 and 45-2-302 discuss the entitlements of decedents‘ spouses and children who
may have been omitted from decedent‘s will. If a testator's surviving spouse married the testator
after the testator executed his will, the surviving spouse is entitled to receive an intestate share
unless that share is devised to a child of the testator born before the marriage. This provision
gives greater rights to children from another marriage than to new spouses. However, spouses
and minor children are still entitled to the family allowance, and spouses and children are entitled
to the personal property allowance.
The law also contains provisions about omitting children born after a will is made. The law is
silent about omitting children born before the will is made. If someone intends to omit a child
born before the will was made, that omission does not have to be in writing. However, having a
written omission in a will or trust can prevent lawsuits later on.
Children born or adopted after a will is made may be entitled to a portion of a testator‘s estate
unless the will is clear about the testator‘s intention to omit the child. Probate judges may
encounter wills that contain a statement, ―I specifically intend to omit Child A as a beneficiary
under this will.‖ Child A is still entitled to notice of the probate proceeding,
The New Mexico case, Bell v. Estate of Bell, 2008-NMCA-045, 143 N.M. 716 (Ct.App. 2008),
discusses this issue at length. The New Mexico Supreme Court originally granted certiorari on
the case, but later quashed certiorari. This means the Court of Appeals version of the case is the
current interpretation of New Mexico‘s law governing omitted spouses.
Practical Tip: If a dispute arises over omitted spouses‘ or children‘s shares, only the district court has
jurisdiction to resolve the dispute.
10.6 Collection of Decedent’s Final Paycheck
The surviving spouse of a decedent may, without a probate proceeding, collect decedent‘s final
paycheck pursuant to Sections 45-3-1301 and 45-3-1302.
10.7 Creditors’ Claims and Demands for Notice
Probate courts cannot accept a demand for notice unless a probate proceeding has already been
opened with our court. If a probate has not been opened, the demand must be filed in the district
court. Section 45-3-204.
The demand for notice must contain:
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The name of the decedent.
The nature of the demandant‘s interest in the estate.
The address of the demandant or his/her attorney.
Once the court receives a demand for notice, the court is required to mail a copy of the demand
to the personal representative of the estate.
Once the demand for notice is filed, ―no order or filing to which the demand relates shall be
made or accepted without notice‖ to the demandant or his/her attorney. Absence of such notice
does not invalidate any order granted in such a hearing or any filing, but the person granted the
order or making such a filing may be held liable for any damages to the demandant.
While the statute does not appear to require the court to provide these copies to the demandant, it
is good practice for the court to do so.
Who Pays for Copies? Probate courts have a duty to be consistent in their policy regarding fees
for copies (courts can‘t charge one person for copies, but not another), so courts should ask all
people requesting the records to pay for them. Section 34-7-15 authorizes specific fees for clerks
of probate courts. However, there are some prohibitions against charging other governmental
entities for copies. In general see the Inspection of Public Records Act, Section 14-20-1, et. seq.,
which is discussed in more detail in Chapter 6.
What are Courts Required to Give to the Public? Since court files are public records, courts
are required to provide anyone copies of anything they want from the files. If the demand relates
to specific filings, they may not care about everything filed. Often, someone demanding copies
of records wants things like the inventory. Since inventories often are not filed with the probate
court, the court can tell the person requesting this information to contact the personal
representative or his/her attorney.
Creditors’ Claims Generally. Although it is not the judge‘s job to supervise personal
representatives in properly performing their duties, it is important to study and understand the
statutes governing creditors‘ claims. See generally Sections 45-3-801 through 45-3-816.
Creditor‘s claims can be debts incurred before or after the decedent‘s death. Credit cards, utility
bills, medical bills, funeral expenses, taxes, and more qualify as debts. Creditors are the persons
or institutions to whom decedent‘s debts are owed. Creditors file claims against the decedent‘s
estate. For claims arising before a decedent‘s death, creditors have a one-year time period to
make claims. Section 45-3-803A(1).
Section 45-3-801 requires personal representatives, within three months of their appointment, to
give written notice to known and reasonably ascertainable creditors. The creditor has two months
to present a claim, either to the personal representative or to the court. Section 45-3-804(A). The
personal representative has sixty days to act on the claim, allowing or disallowing it. Section 45-
3-806(A). If the personal representative does not respond to a claim against the estate
within sixty days, the claim is deemed allowed.
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Important Note: Under the Inspection of Public Records Act, Section 14-2-8E, if the probate court receives
a request for records that belong to another court (i.e., district court), the probate court has
an affirmative responsibility to forward the request to the proper custodian, if known, and
notify the requestor, or if the court is unable to determine the proper custodian, to inform
the requestor.
For example, the probate court may receive a claim against the estate of a decedent, but no
case has been filed in the probate court for that decedent. The court should return the
creditor‘s claim to the creditor with a signed notification ―No probate filed as of _______
(x date).‖ Or, if the probate court knows that the claim should be filed in an existing district
court case, the probate court should forward the claim to the district court clerk. The court
staff may want to check the district court case lookup site before returning a claim. The
case lookup function is at https://caselookup.nmcourts.gov/caselookup/app.
Probate courts cannot hold evidentiary hearings for creditor‘s disputes. If a personal
representative disallows a creditor‘s claim, the creditor can file a petition for allowance in the
district court within sixty days after the mailing of the notice of disallowance. Section 45-3-806.
Some district judges will just resolve the creditor‘s dispute, and a copy of any court order of
resolution should be placed in the probate court case file. The probate court would then keep
jurisdiction over the rest of the case. Other district courts may order the probate court to transfer
the case to the district court. The district court would then have jurisdiction over both the
creditor‘s claim and the rest of the case.
Claims must be paid by the personal representative in a certain order. See Section 45-3-805.
Section 45-3-803(A)(1) generally mandates that all creditors‘ claims are barred against the estate
unless presented within one year following the decedent‘s death. Thus, if a probate is not opened
until one year after decedent dies, creditors would be out of luck. Personal representatives need
to be aware that the court does not make these determinations. It is the personal representative‘s
duty to check to see if there are any claims against the estate, evaluate the validity of all claims
against the estate, and to respond in a timely manner. Failure to do so is a breach of the personal
representative‘s fiduciary duty. See Section 45-3-703A.
Practical Tip: New Mexico law allows creditors to receive payment not just from estate assets, but also
from certain assets that passed outside of probate, such as transfer on death deeds and trusts.
See Sections 45-6-401(J) and Section 46A-5-505A(3).
Certain assets of a decedent are exempt from creditors’ claims. For example, Section
42-10-5 exempts most life insurance proceeds from creditors‘ claims. See also Sections 42-
10-1 through 42-10-13.
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10.7.1 Estate Recovery Law in New Mexico
Federal law requires every state to enact an estate recovery law that allows each state to recover
certain benefits paid on behalf of an individual for services rendered after the recipient reaches
age 55. New Mexico‘s Human Services Department (HSD) may be a creditor of a decedent‘s
estate if the state paid certain benefits on behalf of the decedent prior to death. If a person has
spent down all of his or her resources, the state could not recover anything. New Mexico‘s estate
recovery laws are contained in Sections 27-2A-1 through 27-2A-9.
Estate recovery rules apply to recipients who were fifty-five (55) years of age or older when
medical assistance payments were made on their behalf for nursing facilities services, home and
community based services, and/or related hospital and prescription drug services. Recovery from
a recipient's estate will be made only after the death of the recipient's surviving spouse, if any,
and only at a time that the recipient does not have surviving child(ren) who are less than twenty-
one years of age or blind or disabled.
Under the estate recovery law, after the recipient of benefits dies, the state could recover monies
paid on behalf of the individual who received benefits by filing a claim in probate, selling the
home, or liquidating other assets. Certain undue hardship exceptions also exist. New Mexico's
law allows recovery from probate estate assets. Real property that passed subject to a Transfer on
Death Deed and other property held in joint tenancy or with ―payable on death‖ or ―transfer on
death‖ beneficiaries may also be subject to estate recovery laws in an involuntary probate.
HSD may be a creditor, entitled to be given notice of the probate by the personal representative
and an opportunity to file a claim against the decedent‘s estate. HSD might ask to be appointed
personal representative. It is unlikely that HSD would have the highest priority to be appointed
personal representative, so a formal proceeding in the district court would probably need to be
filed. See Section 45-3-203E.
The probate court‘s involvement in cases with estate recovery issues is very limited. Filing a
claim from HSD in the court file is the most likely involvement the court or staff will have. The
probate judge cannot appoint HSD as personal representative if it does not have highest priority
or unless all those with higher priority consent in writing. If issues arise that are outside of the
probate judge‘s jurisdiction, the judge should transfer the case to the district court for a formal
proceeding.
10.8 Trusts
The New Mexico legislature passed the Uniform Trust Code (UTC), which governs trust
documents in New Mexico. Sections 46A-1-101 through 46A-11-1105. Only the district court
has jurisdiction over disputed trust matters. Probate judges can accept probate cases involving
pourover wills, discussed in Chapter 2, when there is no dispute. Valid pourover wills should be
admitted to probate using the same procedure as for other wills.
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The UTC contains many provisions about creating and managing a trust, as well as provisions
regarding trustees' duties and liabilities. The UTC refers to the person making the trust as the
"settlor."
Trusts are legal documents that set out provisions for the management of property and for the
distribution of property upon someone's death. A person (who may also be called a trustor or
grantor) creates a trust, transfers assets into the trust, and then may choose to manage the trust.
The manager of the trust is called the trustee. If the settlor serves as the initial trustee and later
becomes incapacitated, a successor trustee manages the trust. Upon the settlor's death, assets
remaining in the trust pass to beneficiaries named in the trust document. Beneficiaries can be
spouses, children, grandchildren, pets, charities, or other entities or people.
A revocable living trust (sometimes called an inter vivos trust) is created during one's lifetime.
Trust income and principal can be used for the settlor's benefit during the settlor's lifetime, then
passed to designated beneficiaries after the settlor dies.
The settlor creates a written revocable living trust by signing a trust document (usually signed
once as settlor and once as trustee) in the presence of a notary public, who then notarizes the
trust document.
Once a trust is created, the settlor or the settlor's attorney must transfer assets into the trust. Legal
title to transferred assets is held in the name of the trustee of the trust, so no probate is necessary
when the settlor dies. The trustee (who could be the settlor, a bank or trust company, a friend, or
a relative) manages the trust assets for the benefit of a beneficiary or beneficiaries (who could be
the settlor during the settlor's lifetime, then the children of the settlor, etc.).
The living trust is established and becomes effective during the lifetime of the settlor. Revocable
living trusts may be amended at any time and can be terminated at any time by the settlor, as
long as the settlor is mentally competent.
The trust remains in effect when the settlor dies, and the settlor's assets are then distributed
according to the terms of the trust. If more than one settlor has created a joint trust, the surviving
settlor could change the trust unless the express provisions of the trust state otherwise. After both
settlors died, the trust could not be changed unless all beneficiaries consented.
Only the district courts have jurisdiction to resolve disputes involving trusts or problems with the
administration of trusts. Probate judges‘ involvement with trusts is limited to:
1. Admitting a pourover will into probate. Usually this occurs because the settlor
neglected to transfer an asset into the name of the trustee of the trust.
2. Admitting a will that contains a testamentary trust, which becomes effective upon the
death of the testator.
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Probate judges should not give legal advice about whether or not a trust is better than or
preferable to a will. Unless judges are also attorneys licensed in New Mexico, they cannot
prepare trusts or other legal documents for family members, friends, neighbors or others.
10.9 Cremation Law
Since 1993 New Mexico has had a law that allows an individual to authorize his or her own
cremation in a will or a separate written statement either signed by the individual and notarized
or signed by the individual and two witnesses. Funeral homes, crematories and others are
immune from liability for relying on the statement. If a person has put his or her wishes in the
proper written form, funeral homes and others cannot require next of kin to sign permission for
the cremation. Although the law clearly states that the permission of next of kin is not required if
a valid cremation statement exists, some funeral establishments still will not honor cremation
statements. This is a clear violation of the law.
If a person does not leave written instructions, but still wishes to be cremated, the law allows a
decedent‘s next of kin to give permission. If a decedent is married, his or her spouse is the next
of kin. If a decedent has no spouse, a majority of the decedent‘s surviving adult children must
sign the authorization form. If a decedent has no spouse or children, a majority of the decedent‘s
surviving siblings must sign. If a decedent has no next of kin, a close friend who is familiar with
the decedent‘s wishes may sign permission for the cremation.
If a decedent left no written instructions regarding the disposition of the decedent's remains, died
while serving in any branch of the United States armed forces, the United States reserve forces or
the national guard and completed a United States department of defense record of emergency
data form or its successor form, the person authorized by the decedent to determine the means of
disposition on a United States department of defense record of emergency data form shall
determine the means of disposition, not to be limited to cremation. Section 24-12A-2B.
The cremation law appears in two sections of New Mexico‘s laws, Sections 24-12A-1 through 3
and Section 61-32-19, which is part of the Funeral Services Act. Although Section 61-32-19
main statute says ―Repealed effective July 1, 2012,‖ the 2012 Cumulative Supplement extends
the repeal date to July 1, 2018.
Practical Tip: Although New Mexico law allows a person to leave cremation or burial instructions in a
will, the reality is that often the will is not found or reviewed until after the funeral,
cremation, or burial. Having a separate written statement of one‘s wishes should help ensure
that one‘s wishes are followed. A person could have instructions in both a will and a
separate statement; in that instance, make sure the instructions are identical to avoid future
problems!
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10.10 Wrongful Death Claims
On occasion a probate judge will receive a probate case asking for the appointment of a personal
representative for the sole purpose of bringing a wrongful death action on behalf of a decedent.
Judges should be aware that the term ―personal representative‖ as used in the Wrongful Death
Act is different than a ―personal representative‖ appointed under the Uniform Probate Code.
Further, the law provides that wrongful death proceeds are not part of the probate estate.
Section 41-2-3 of the Wrongful Death Act provides:
Every action mentioned in Section 41-2-1 NMSA 1978 shall be brought by and in the
name of the personal representative of the deceased person, and the jury in every such
action may give such damages, compensatory and exemplary, as they deem fair and just,
taking into consideration the pecuniary injury resulting from the death to the surviving
party entitled to the judgment, or any interest in the judgment, recovered in such action
and also having regard to the mitigating or aggravating circumstances attending the
wrongful act, neglect or default. The proceeds of any judgment obtained in any such
action shall not be liable for any debt of the deceased; provided the decedent has left a
spouse, child, father, mother, brother, sister or child or children of the deceased child, as
defined in the New Mexico Probate Code [Chapter 45 NMSA 1978], but shall be
distributed as follows:
A. if there is a surviving spouse and no child, then to the spouse;
B. if there is a surviving spouse and a child or grandchild, then one-half to the surviving
spouse and the remaining one-half to the children and grandchildren, the grandchildren
taking by right of representation;
C. if there is no husband or wife, but a child or grandchild, then to such child and
grandchild by right of representation;
D. if the deceased is a minor, childless and unmarried, then to the father and mother
who shall have an equal interest in the judgment, or if either of them is dead, then to the
survivor;
E. if there is no father, mother, husband, wife, child or grandchild, then to a surviving
brother or sister if there are any; and
F. if there is no kindred as named in Subsections A through E of this section, then the
proceeds of the judgment shall be disposed of in the manner authorized by law for the
disposition of the personal property of deceased persons.
The case In the Matter of the Estate of Sumler 133 N.M. 319 (Ct. App.2002) has caused further
confusion on this issue. Sumler states, ―In view of our holding that appointment as the personal
representative of Kirsten's estate [appointed in a probate proceeding] is neither necessary nor
sufficient authority for Appellants to serve as Section 41-2-3 personal representatives in
prosecuting an action for her wrongful death, we conclude that this appeal is moot to the extent it
seeks review of the district court's order appointing Father as personal representative of Kirsten's
estate.‖
Some attorneys ignore the Sumler case and continue to seek appointment of a personal
representative in the probate court. Others ask the district court to appoint a personal
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representative as part of the wrongful death action. Wrongful death cases are filed in the district
court as civil cases, not probate cases. In that instance, a party can ask for a personal
representative to be appointed for the purpose of bringing a wrongful death action.
The bottom line is that there is no provision in the Uniform Probate Code for a limited
appointment of a personal representative. Personal representatives appointed under the
Uniform Probate Code in either the probate or district court must meet all of their duties to give
notice, prepare inventories, notify creditors, etc. even if their sole desire is to conduct discovery
of medical records for a possible wrongful death action. If an attorney insists that a probate judge
can appoint a personal representative with limited powers to handle only a wrongful death claim,
ask that attorney to provide the section of the Uniform Probate Code that permits this. There isn‘t
one!
10.11 Notarial Acts and Oaths
Initial probate applications, acceptances to serve as personal representative, and the verified
closing statements must be signed in the presence of a notary public. Wills may also be
notarized, although this is not required.
Probate judges may also administer oaths. See also Section 14-13-3, which allows clerks of the
probate courts to administer oaths. Probate judges are occasionally asked to administer an oath to
a personal representative who has opened a probate in another state but lives in New Mexico.
The judge may receive a letter and packet from a court outside of New Mexico. The letter may
include a ―Commission‖ or other authorization to the probate judge to administer an oath to a
personal representative or administrator who was appointed in the other state‘s court. The other
state‘s law may require the personal representative to personally appear to take the oath of office.
But instead of requiring the personal representative to travel, for example, to Pennsylvania, the
Pennsylvania court empowers a New Mexico judge to administer the oath locally. The judge, or
clerk of the court, if allowed, would make an appointment with the personal representative to
appear at the probate court to take the oath.
The other court will usually provide the probate judge with instructions on returning the
paperwork to that court. The court, not the personal representative, must return the completed
oath, including court seal, to the out-of-state court. Follow the instructions in the cover letter
carefully. Before administering the oath, check the person‘s photo identification. The judge
should keep a copy of the oath paperwork for his or her records.
Probate judges or probate clerks should not notarize or administer oaths for probate cases filed in
their court, because this would be considered a conflict of interest. Although the Uniform Law
on Notarial Acts allows a judge, clerk or deputy clerk of any court of this state to perform
notarial acts, caution and restraint should be exercised when using the court seal. For additional
guidance about notarial acts within New Mexico, see Sections 14-12A-1 through 14-12A-26 and
Section 14-14-3. The definitions contained in Section 14-12A-2 are particularly helpful. For
judges with limited access to the multiple volumes of New Mexico Statutes Annotated (NMSA),
remember that all New Mexico statutes and rules are available online for free at:
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http://www.nmonesource.com/nmpublic/gateway.dll/?f=templates&fn=default.htm Click in
upper left corner ―+ Statutes, Rules, Const.‖ to drop down a menu.
The most important job of a notary public is to verify that the person signing the document is
who they claim to be and personally signed the document in the notary's presence. The person
signs the document, the notary signs the notarial certificate, and then the notary either seals an
impression on the document or stamps it with a rubber stamp approved by the Secretary of State.
From a practical standpoint, an inked rubber stamp photocopies much more easily than a seal
impression, (but is much harder to identify as an original document). Some office supply stores
have round ink stamps that notaries (or the court) can apply over a seal to make seal show up in a
photocopy.
A person who is not personally known to the notary public must provide satisfactory evidence of
identity, such as a driver‘s license or other photo ID. It is also the notary's responsibility to
decide whether a person is signing willingly and seems competent to sign.
To make sure that notaries properly perform their duties, New Mexico‘s law requires a $10,000
surety bond for all notaries. Section 14-12A-9. A person may not become a notary until an oath
of office and the bond have been provided and the secretary of state approves the oath and bond.
Notaries should never notarize a document that was not signed in their presence. Under the law,
those who violate this requirement can be convicted and fined up to $1,000, or imprisoned for up
to six months, or both.
In New Mexico notaries may perform the following notarial acts:
Acknowledgments.
Oaths and affirmations.
Jurats (defined in Section 14-12A-2(F).
Copy certifications.
Other acts allowed by law.
New Mexico notaries may not perform marriages.
Notaries public shall:
Be New Mexico residents.
Be eighteen or older.
Read and write English.
Have no felony convictions.
Not have had a notary public commission revoked during the past five years.
The law governing notaries contains detailed provisions about their duties and obligations.
Although the law does not require it, keeping a journal of all notarial acts, along with the date,
title of the document, and names of the people whose signatures were notarized is wise.
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The law also sets fees that notaries can charge. A notary can charge a maximum fee of $5.00 for
each acknowledgment, oath, or jurat. If a notary charges more than $5.00 per seal or stamp, the
notary is probably unaware of the laws that regulate fees. Some notaries charge no fee, especially
if they work at businesses that provide free notary services to customers.
The Secretary of State oversees notary appointments, which expire after four years. The
application fee is $20. Information about notaries is available on the Secretary of State‘s Office
website at http://www.sos.state.nm.us/Business_Services/Notary_Division.aspx. For more
information or to obtain a pamphlet about notary requirements, call the Secretary of State‘s
office at 505-827-3600 (Santa Fe) or toll-free at 1-800-477-3632.
The laws governing notaries can be found at Sections 14-12A-1 through 26. Laws about
acknowledgments and oaths are found at Sections 14-13-1 through 25. The Uniform Law on
Notarial Acts is found at Sections 14-14-1 through 11.
10.12 Missing Heirs and Unclaimed Property
Sometimes an attorney or personal representative searches diligently for an heir or devisee and is
unable to locate them. For example, suppose a decedent has five children, one of whom cannot
be found. Many people think that the other four children end up sharing the missing child‘s share
of the estate. They are incorrect.
Section 45-3-914 of New Mexico‘s Uniform Probate Code states, ―If an heir, devisee or claimant
cannot be found, the personal representative shall distribute the share of the missing person to his
conservator, if any. Otherwise, the personal representative shall sell the share of the missing
person and distribute the proceeds to the state treasurer as prescribed by the Uniform Unclaimed
Property Act [UUPA].‖
If a court has not declared a missing person dead or appointed a conservator for him or her, then
UUPA applies. UUPA only covers intangible property, such as bank accounts, stocks, insurance
policies, and annuities, and intangible property that may be contained within a safe deposit box.
UUPA does not allow the state to accept real property, guns not found in safe deposit boxes,
vehicles, animals, boats and other objects. The contents of safe deposit boxes are sorted to
dispose of valueless objects, and the more valuable objects may later be auctioned and converted
to cash.
New Mexico‘s taxation and revenue department is charged with receiving and managing
unclaimed property. Property is presumed abandoned if it is unclaimed for a certain amount of
time. These time periods vary from one to fifteen years depending on the type of property. For
example, the time period for:
Utility deposits, one year
Certain IRAs, three years.
CDs and stocks, five years, in general.
Traveler‘s checks, fifteen years after issuance.
Money orders, seven years after issuance.
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Contents of safe deposit box, five years after expiration of rental period of box.
The holder of abandoned property must prepare reports and publish notices about the abandoned
property. After the specified time periods have elapsed, the holder of the property must pay,
deliver or arrange the payment or delivery of unclaimed property to the taxation and revenue
department.
Upon payment or delivery of property, the state assumes custody and responsibility for the
safekeeping of the property. Taxation and revenue must deposit the funds as set out in the law,
reserving a certain amount for claims and keeping records of the property received.
If a person finds out that the state is holding their property, the person can file a claim with the
taxation and revenue department. Once the department verifies the claimant‘s identity and right
to the property, the department will allow the claim and must pay it within 30 days.
UUPA does not specifically address inheritances, but does address amounts distributable from
trusts or custodial funds. Since the probate code directs missing heirs‘ shares to be governed by
UUPA, that is the route to take unless a conservator has been appointed for the missing person.
People may wonder why the probate code directs a missing recipient‘s share to be held by a
conservator or the state instead of being distributed to the decedent‘s other heirs. One reason may
be that if the law allowed other heirs to split a missing person‘s share, the heirs might withhold
information about a person‘s whereabouts to gain a larger share of the estate. Another is that the
state is the only entity that has the ability to preserve the property for the heir indefinitely
without cost to the estate or the heir. Entrusting the missing person‘s share to a neutral agency
ensures that the share will be available if the person is ever located.
A court proceeding is usually not necessary to claim unclaimed property. New Mexico‘s Tax and
Revenue Department, Unclaimed Property Division, which oversees UUPA, may release
unclaimed property to a claimant who uses the division‘s own administrative claims procedure.
Or the division may accept a small estate affidavit (discussed below) to claim property on behalf
of a decedent if the claimant provides substantive entitlement to funds under applicable heirship
laws and a copy of the owner‘s death certificate if the circumstance is such that a diligent
personal representative has discovered some unclaimed property when searching for other assets
of the estate, In this circumstance, the small estate affidavit may be accepted on a case-by-case
basis. The Department usually requires that its own administrative claims procedure be used if
the claim is the only substantial asset of the estate, or if it appears that a probate has been opened
to ―end run‖ the Department‘s claim procedures.
The Unclaimed Property Division generally accepts what a claimant would provide to the
probate court to claim the money or other property under UUPA. The division looks for a
documented chain of title. If there is a will, a copy of the will should be provided. If there is no
will, the division follows the intestacy laws in effect in the appropriate jurisdiction at the time of
death as much as possible. The claimant should provide an affidavit that he or she knows of no
later wills or codicils. The claimant must also show why he or she has priority to claim the
unclaimed property of the decedent. If the distribution is made on a generational basis, i.e., a will
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leaves to John Doe I and then John Doe I dies after the decedent, but before getting a
distribution, the claimant should expect to describe who would take. For example, a claimant
could state, ―John Doe I was not married, was a widower, and left no will. He had left five
children, Rebecca, Michael, Tommy, Gilbert and Grace and to my knowledge, no others. I am
Rebecca.‖
The claimant must prove his or her identity, including official birth certificates if possible. The
longer it has been since the property is unclaimed, the more difficult it may be to prove a right to
claim the property. New Mexico‘s Unclaimed Property Division may adjust what documents of
proof it requires and the supporting affidavit to account for the circumstances of each case.
As described above, the division will generally honor a probate proceeding if it appears that the
unclaimed property is ancillary to the ongoing probate. For example, sometimes a personal
representative, as part of a probate, will check with New Mexico‘s Unclaimed Property Division
and find some. If that appears to be the case, the division will generally go along with processing
the claim through the probate proceeding. If the single or most substantial asset is unclaimed
property, the division will require the personal representative to go through the division‘s own
administrative process to make sure the correct people receive the unclaimed property and to
help prevent fraud. The Department will require complete compliance with its administrative
claims procedure if the probate appears to be opened as a means to avoid the Department‘s
required process.
Accordingly, the division does not honor claims made by personal representatives in their
capacity years after the fact. The reason for this is that an heir-finder is often behind the claim
and attempting to charge a finder‘s fee against the other heirs who did not sign the heir-finder
contract. The division may be willing to deal with a single family representative, who undertakes
to distribute claim forms to other claimants and to process the claim on behalf of other relatives.
For more information on UUPA or to search for names of people for whom the state is holding
unclaimed property, visit http://ec3.state.nm.us/ucp/ or missingmoney.com. New Mexico‘s Tax
and Revenue Department‘s Unclaimed Property Division can be reached by telephone at (505)
827-0762 or [email protected].
Practical Tip: Probate judges may encounter possible heirs to unclaimed property held by the state of New
Mexico. ―Heir finders‖ who charge a fee may have informed the heir about potential
unclaimed property. It is permissible for the judge to give the heir contact information to the
state‘s Unclaimed Property Division so that the heir can contact the division directly and not
pay a fee for services that are free.
10.12.1 Federal Letter Forwarding Services
Although it is not a probate judge‘s job to help locate a missing heir, it is good for judges to
know about the process. If someone has a person‘s social security number, the Internal Revenue
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Service and Social Security Administration can forward notice of an inheritance to the recipient
at the last address on record.
The Social Security Administration (SSA) or Internal Revenue Service (IRS) will not give
someone‘s address without his or her permission. But both agencies have a ―letter forwarding
service‖ that can be used to attempt to contact a missing person. I used the IRS‘s service long
ago to successfully locate two missing heirs.
These agencies will help in limited circumstances that do not interfere with their regular
business. The requestor must give a good reason to forward the letter, such as a death or serious
illness in the missing person's immediate family, or a large amount of money that is due the
missing person.
SSA does not charge to forward letters with a humanitarian purpose. SSA charges a non-
refundable $35 fee to cover costs when the letter is informing the missing person about money or
property due him or her.
SSA reviews each letter that they forward to ensure that it will not embarrass the missing person
if read by a third party. Letters sent for forwarding should be in a plain, unstamped, unsealed
envelope that only shows the missing person's name.
SSA needs the missing person's social security number or identifying information to help find
the SSA number. Identifying information would include the person's date and place of birth, the
father's name, and the mother's full birth name.
Requests to SSA must be in writing. Include the missing person's name and identifying
information; the reason for wanting to contact the missing person; the last time the person was
seen; and information about other attempts to contact the person.
Mail requests to Social Security Administration Letter Forwarding, P.O. Box 33022, Baltimore,
MD 21290-3022. For questions about SSA‘s letter forwarding service, call the toll-free number,
1-800-772-1213 or visit the website at http://www.socialsecurity.gov/foia/html/ltrfwding.htm.
The IRS will help employers, state agencies, commercial locator services, individuals, attorneys,
estate administrators, or others who directly control assets to try to locate a missing person, while
safeguarding the privacy rights of the taxpayer who is sought.
The IRS‘s Letter-Forwarding Program helps individuals who have the social security numbers of
the person they wish to contact, but whose address or whereabouts currently are unknown to the
inquirer.
For humanitarian purposes, which include financial entitlement, the IRS will search its database
for a recent address and forward the inquirer's letter to the missing person. Like the SSA, the IRS
needs a good reason to cooperate, such as a matter of life and death and entitlements to assets.
The IRS will not help locate a party to pending litigation, for service of process, or for
genealogical searches.
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IRS employees may screen letters submitted for forwarding to make sure they meet one of its
purposes. The IRS may also charge a fee for its letter forwarding service, but does not charge for
all searches.
For confidentiality reasons, the SSA or IRS will not inform the inquirer about the results of any
searches. Letters intended for individuals for whom the IRS has no current records and letters
forwarded by IRS and then returned as undeliverable are destroyed without informing the
inquirer of the action taken.
Requests for letter forwarding assistance from the IRS should be directed to the Disclosure
Scanning Unit in Chamblee, GA, at the following address:
Internal Revenue Service
Disclosure Scanning Operation —
Stop 93A
Chamblee GA 30341
The Disclosure Scanning Unit will handle these requests as its workload permits. There is no
charge for this service, except for high volume requests. Revenue Procedure 2012-35 contains
details and is available online at http://www.irs.gov/irb/2012-37_IRB/ar06.html.
10.13 Powers of Attorney
A financial power of attorney allows the maker, called the principal, to appoint an agent (also
called an "attorney in fact") to make business decisions on the principal‘s behalf. Principals must
be mentally competent to create a power of attorney. Financial powers of attorney should be
signed in the presence of a notary public, who then notarizes the document. Health care powers
of attorney authorize an agent to make personal and health care decisions on behalf of a
principal.
New Mexico law does not require the agent to be a New Mexico resident. Appointing a
trustworthy agent is vital, however.
A power of attorney may become effective immediately or it can "spring" into action only if the
principal becomes incapacitated. To remain in effect if the principal becomes incapacitated, a
power of attorney must contain specific language of "durability."
New Mexico has a "do it yourself" power of attorney form, but many attorneys use their own
form. New Mexico law generally recognizes powers of attorney made in other states. Some
financial institutions will not honor a power of attorney; some prefer that the person use the
institution‘s in-house power of attorney form. Showing the power of attorney to a bank,
stockbroker, insurance company, or other company before the agent must use the power of
attorney could prevent problems later.
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Usually powers of attorney do not need to be recorded. If, however, the agent uses the power of
attorney to handle real estate transactions, the power of attorney must be recorded in the office of
the county clerk where the real estate is located.
The Internal Revenue Service (IRS) prefers its own power of attorney Form 2848 for taxes. IRS
Forms are available free by calling 1-800-829-3676. The Social Security Administration requires
a representative payee to be appointed to handle benefit payments.
All powers of attorney end at the principal’s death and should not be used to liquidate
bank accounts or other assets of decedent after death. The decedent‘s will or trust or laws of
intestate succession would control the disposition of decedent‘s property after death, not a power
of attorney.
Probate judges usually will encounter powers of attorney only in the context of consents. If an
heir or other person who has priority to serve as personal representative of an estate is unable to
serve due to incapacity, the agent can sign a consent on behalf of the incapacitated person.
Including a copy of the power of attorney in the probate court file will show that the agent had
authority to sign on behalf of the heir or devisee.
New Mexico‘s Uniform Power of Attorney Act is located in Sections 45-5B-101 through 45-5B-
403. A statutory form for a financial power of attorney is included in Section 45-5B-301. New
Mexico‘s Uniform Health Care Decisions Act is located in Sections 24-7A-1 through 18. A
statutory form for an ―Optional Advance Health-Care Directive‖ is included in Section 24-7A-4.
10.14 Authenticated v. Certified Copies
Authentication in New Mexico means certified or exemplified, Section 45-1-201(A)(3). Copies
certified by a court to be true and correct are considered ―authenticated‖ under New Mexico‘s
current law. In some states, however, authenticated copies are not the same as certified copies. For
example, a court from another state may require an authenticated copy of a will from a case filed in
the probate court. In that other state, authentication may require a triple certification. Only the
county clerk and court, not attorneys or members of the public, can attest that documents are
authenticated copies.
Practical Tip: Although New Mexico probate courts can accept certified copies as authenticated copies
(certification and authentication now appear to be the same thing for purposes of the
Uniform Probate Code), out-of-state courts may require authenticated copies of documents
from the probate court file. If an out-of-state court requests authenticated copies, the probate
judge may need to call the out-of-state court to ask what formality is required. Because
another state may require something more than certified copies, sample authentication
forms are included below.
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For authenticated copies issued by the probate court, the county clerk first certifies that the copies
attached are true and correct copies of the documents on file with the court. The probate judge then
certifies that the county clerk has the authority to act in his/her capacity. The county clerk then
certifies that the probate judge has the authority to act in his/her capacity. Some states call this an
Exemplification or Exemplified Copy. A sample authentication form follows.
SAMPLE AUTHENTICATION FORM
STATE OF NEW MEXICO )
)ss.
COUNTY OF ___________ )
I, ____________________________________, County Clerk and Ex-Officio Clerk of the
Probate Court of the State of New Mexico, within and for the County of _______________, do
hereby certify the following to be a true, correct and complete copy of (insert name and # of Estate
and list of pleadings attached (or state that it is a complete copy of the file starting with 1st document
filed on xx date and ending with last document, filed on xx date_________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
as the same remains on file and of record in my said office.
IN WITNESS WHEREOF, I have set my hand and affixed the seal of said Court this
________ day of ________________, 20____.
_____________________________________________
Signature of ________________________ County Clerk
(Affix seal here)
UNITED STATES OF AMERICA
STATE OF NEW MEXICO
COUNTY OF ___________________
I, __________________________________, Judge of the Probate Court of the State of New
Mexico, within and for the County of ___________________________, do hereby certify that
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____(insert name of County Clerk)____________, whose name is subscribed to the foregoing
Certificate of Attestation, now is, and was at the time of the signing and sealing of the same, the
County Clerk and Ex-Officio Clerk of the Probate Court of the State of New Mexico, within and for
the County of ____________________, and keeper of the seal and records thereof, duly elected,
commissioned and qualified to office; that full faith and credit are and of right ought to be given to
(his/her) official acts as such, in all Courts of Record in the United States and elsewhere, and that
(his/her) attestation is in due form of law and by the proper officer.
IN WITNESS WHEREOF, I have set my and affixed the seal of said Court at (insert name of
City), in said County of _________________ and State of New Mexico, this ______ day of
____________, 20____.
(affix seal here) ______________________________________
Signature of Judge of the Probate Court of
the State of New Mexico within and for
the County of __________________________
UNITED STATES OF AMERICA
STATE OF NEW MEXICO
COUNTY OF ____________________
I, (insert name of county clerk), County Clerk and Ex-Officio Clerk of the Probate Court of the State
of New Mexico, within and for the County of ___________________, do hereby certify that (insert
name of probate judge), whose name is subscribed to the foregoing Certificate of Attestation, now is,
and was at the time of signing and sealing the same, Judge of the Probate Court of the State of New
Mexico, within and for the County of _________________, and was duly elected, commissioned
and qualified to office; that full faith and credit are and of a right ought to be given to all (his/her)
official acts as such, in all Courts of Record in the United States and elsewhere, and that (his/her)
attestation is in due form of law and by the proper officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court
at (insert name of City), in said County of _________________________ and state of New Mexico,
this ____ day of ____________, 20___.
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I, ___________________, County Clerk of
_______________ County, New Mexico, hereby
certify that the foregoing is a true, correct and full
copy of the instrument herewith set out and
remaining in full force and effect, as appears of
record in my office.
Dated this ____ day of ________________, 20___.
(Signature or name stamp of County Clerk)
___________________County Clerk
By: (original signature of Deputy Clerk)_____
Deputy Clerk
(Affix seal here) ________________________________________
Signature of ___________________County Clerk
Certified copies may also be requested from the probate court. A party might request a certified
copy of a will, application, order or any other document in the court file. Each individual
document requires a separate certification, while one authentication could apply to the entire
contents of a court file. The statutory authority for the court‘s issuance of certified copies is
Section 45-1-305(A), Records and Certified Copies, which reads:
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 which 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.
The certification stamp for Letters looks something like this:
10.15 Small Estate Affidavits
Estates consisting of personal property valued at $50,000 or less may be able to use a ―Collection
of Personal Property Affidavit,‖ set out in Sections 45-3-1201 and 45-3-1202. Some financial
institutions will not accept the affidavit; then, it may be easier for the person to open a probate.
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The affidavit cannot be used to transfer title to real property. The requirements for the
affidavit (under Section 45-3-1201) are that:
The value of the entire (probate) estate, less liens and encumbrances, does not exceed
$50,000.00.
It has been more than 30 days since the person has died.
No probate is filed or pending in any jurisdiction.
The person submitting the affidavit is the person entitled to transfer of the asset.
All successors entitled to the property must sign the affidavit in the presence of a notary
public. The person or entity that transfers the property based on the affidavit is released from
liability as if they had dealt with a duly appointed personal representative of the estate; see
Sections 45-3-1201 and 1202. Judges can give a copy of these laws to people to give to the
financial institution holding the decedent‘s personal property, but should not participate in
persuading the institution to honor the affidavit. If an institution refuses to accept the affidavit,
the person entitled to be the decedent‘s personal representative can file a case with the probate or
district court asking to be appointed or file another proceeding to claim the property, see Section
45-3-1202.
This affidavit cannot be used if a probate case has been opened in any court. If a case is already
open, the personal representative would use the Letters Testamentary or Letters of
Administration to claim and pass the decedent‘s personal property to the rightful successors.
The Motor Vehicles Division has its own version of this form, MVD Form 10011, ―Certificate of
Transfer without Probate.‖ A sample MVD affidavit is at:
http://www.mvd.newmexico.gov/SiteCollectionDocuments/assets/mvd10011.pdf
(See the next page for a sample affidavit form).
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10.15.1 Sample Affidavit Form
STATE OF NEW MEXICO )
) ss.
COUNTY OF _________________ )
AFFIDAVIT OF SUCCESSOR IN INTEREST TO
____________________________ (Name of Decedent)
_____________________________, the affiant herein, having been duly sworn, states
upon oath:
1. The affiant(s) is/are the successor(s) of _____________________ (name of decedent),
deceased.
2. The value of the entire estate of the decedent, wherever located, less liens and
encumbrances, does not exceed $50,000.
3. Thirty days have elapsed since the death of the decedent.
4. No application or petition for the appointment of a personal representative is pending
or has been granted in any jurisdiction.
5. Pursuant to NMSA Section 45-3-1201 (2012 Cum. Supp.), the affiant(s), as
successor(s) of the decedent, is/are entitled to the payment of any sums of money due and owing
to the decedent, to the delivery of all tangible personal property belonging to the decedent and in
the possession of another, and to the delivery of all instruments evidencing a debt, obligation,
stock or chose in action belonging to the decedent.
DATED: __________________, 20___.
________________________________
AFFIANT*
*Each affiant should sign on a separate line and and also sign a separate acknowledgement
below.
_________________________________, Affiant, being first duly sworn, states on oath that all
of the representations in this affidavit are true as far as affiant knows or is informed, and that
such affidavit is true, accurate and complete to the best of affiant's knowledge and belief.
_________________________________
AFFIANT*
SUBSCRIBED AND SWORN TO before me this ______ day of _________________, 20___
by ________________________, Affiant.
__________________________________
NOTARY PUBLIC
My Commission Expires:
10-25
10.16 Transfer of Homestead Affidavits
Sometimes a home acquired during the marriage as community property was titled only in
decedent‘s name (rather than both spouses‘ names) or listed both spouses‘ names, but only as
―husband and wife,‖ and not as ―joint tenants.‖ Normally if this were the case, the surviving
spouse would open a court probate proceeding to transfer the home into his or her name. But
when only a community home needs to be probated, New Mexico has a special law that allows
the surviving spouse to complete an "affidavit of transfer of title to homestead."
When a husband and wife own a homestead as community property and when either the husband
or wife dies intestate or dies testate and by the husband's or wife's will devises the husband's or
wife's interest in the homestead to the surviving spouse, the homestead passes to the survivor and
no probate or administration is necessary. Section 45-3-1205. Instead the law allows the transfer
of title to the homestead to the surviving spouse by an affidavit. The affidavit must be signed by
the surviving spouse in the presence of a notary public.
Section 45-3-1205 provides this shortcut transfer of title to the community homestead to the
surviving spouse when no probate proceeding is required for any other property or assets. This
means that all of decedent‘s other assets must have passed outside of probate through joint
tenancy, payable on death (POD) accounts, transfer on death (TOD) accounts, or named
beneficiaries on accounts. Only title to the community homestead needs to pass to the surviving
spouse.
If no court proceeding is required for other assets, the transfer of homestead affidavit may be
used. If there is no will or if the deceased spouse's will leaves the home to the surviving spouse,
the home transfers by using the affidavit instead of a court proceeding. This affidavit cannot be
used to transfer title to real property other than the marital home. The affidavit must be
recorded in the county clerk's office where the property is located and must be accompanied by
the original will of the decedent, if any, and a copy of the deed to the homestead. A surviving
spouse must wait at least six months after the death of the spouse to use this affidavit, which
must also include statements about the payment of debts and tax.
To use this affidavit:
the home must be community property;
the value of the home for property tax purposes cannot exceed $500,000; and
the home involved must be the principal place of residence of the decedent or surviving
spouse.
at least six months must have elapsed since the death of the decedent spouse.
The affidavit must contain particular language, such as:
the surviving spouse and deceased spouse were married at the time of death and owned
the home as community property;
except for the home, no probate of the decedent's estate is necessary;
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no one has applied to be personal representative or started a probate proceeding in any
court;
all funeral expenses and other debts have been paid; and
no federal or state taxes are due.
Additional language, outlined in Section 45-3-1205, must be included as well.
If these requirements are met, clear legal title to the home passes to the surviving spouse without
a probate. To complete the transfer of title, the surviving spouse records the affidavit, deed, and
original will, if any, in the office of the county clerk in the county where the home is located. If a
person is unsure about how to prepare and record this affidavit, they should hire an attorney for
assistance.
This affidavit helps only husbands and wives who do not have a joint tenancy deed to their
community home. If the marital home were the separate property of one spouse, this affidavit
could not be used.
Also, the current version of the law defines "homestead" as the principal place of residence of the
decedent or surviving spouse or the last principal place of residence if neither the decedent nor
the surviving spouse is residing in that residence because of illness or incapacitation and that
consists of one or more dwellings together with appurtenant structures, the land underlying both
the dwellings and the appurtenant structures and a quantity of land reasonably necessary for
parking and other uses that facilitates the use of the dwellings and appurtenant structures, and
provided the full value of this property as assessed for property taxation purposes does not
exceed five hundred thousand dollars ($500,000).
(See the next page for a sample affidavit form).
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10.16.1 Sample Affidavit Form
AFFIDAVIT OF TRANSFER OF HOMESTEAD TO SURVIVING SPOUSE
PURSUANT TO NMSA SECTION 45-3-1205 (2012 Cum. Supp.)
The undersigned, _____________________________________________, (name of surviving
spouse, hereinafter "affiant") being first duly sworn, deposes and says that:
1. Six months have elapsed since the death of ____________________ (name of deceased
spouse, hereinafter "decedent") as shown on the death certificate.
2. At the time of death of the decedent, affiant and decedent were married and owned their
homestead described as:
(insert legal description of home here)
as community property.
3. A copy of the deed with the legal description of the homestead is attached hereto.
4. But for the homestead, the decedent's estate is not subject to any judicial probate
proceedings in district court or probate court.
5. No application or petition for appointment of a personal representative or for admittance
of a will to probate is pending or has been granted in any jurisdiction.
6. Funeral expenses, expenses of last illness, and all unsecured debts of the decedent have
been paid.
7. The affiant is the surviving spouse of the decedent and is entitled to title to the homestead
by intestate succession or by devise (if devised under a valid last will of decedent, the
original will is attached to the affidavit).
8. No other person has a right to the interest of the decedent in the described property.
9. No federal or state tax is due on the decedent's estate.
10. The property was the homestead of decedent and affiant as defined in Section 45-3-1205,
NMSA 1978, and the full value of the property as assessed for property taxation purposes
does not exceed five hundred thousand dollars ($500,000).
The affiant affirms that all statements in the affidavit are true and correct and further
acknowledges that any false statement herein may subject affiant to penalties relating to perjury
or subornation of perjury.
Dated: ___________________
______________________________________
Affiant (Print Name Here, Sign on Line Above)
10-28
A C K N O W L E D G E M E N T
STATE OF NEW MEXICO )
)ss.
COUNTY OF __________________)
This instrument was subscribed, sworn to and acknowledged before me this _____ day of
__________________, 20____, by ____________________, Affiant.
_________________________________
NOTARY PUBLIC
My commission expires:
10.17 Out-of-State Personal Representative Shortcut
It is possible that a New Mexico financial institution will not accept Letters Testamentary or Letters
of Administration issued to a personal representative appointed in another state. An affidavit from
the personal representative may work instead.
Section 45-4-201 allows payment of debt and delivery of personal property to a domiciliary foreign
personal representative without local administration in limited circumstances. This is similar to the
small estate affidavit, but instead of being used by the successors to claim personal property, it is
used by a personal representative for a decedent domiciled in another state, but who has personal
property in New Mexico. This statute may apply if a personal representative has been appointed in
another state.
At any time after the expiration of sixty days from the death of a nonresident decedent, any person
indebted to the estate of the nonresident decedent or having possession or control of personal
property, or of an instrument evidencing a debt, obligation, stock or chose in action belonging to the
estate of the nonresident decedent, may pay the debt, deliver the personal property, or the instrument
evidencing the debt, obligation, stock or chose in action, to the domiciliary foreign personal
representative of the nonresident decedent upon being presented with proof of his appointment and
an affidavit made by or on behalf of the representative stating:
A. the date of the death of the nonresident decedent;
B. that no local administration, or application or petition therefor, is pending in this state; and
C. that the domiciliary foreign personal representative is entitled to payment or delivery.
The affidavit containing the above information would be presented to the party holding the personal
property. If the institution holding the personal property or instrument of the nonresident decedent
releases the property, then the personal representative would not need to file a probate proceeding in
New Mexico. Probate judges should not be involved in preparing an affidavit for a foreign
personal representative, but may hand out a copy of the statute as general information about
this procedure.
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CHAPTER 11
Weddings Performed by
Probate Judges
This chapter covers:
Who may perform weddings.
Marriage license requirement.
Limits on fees for performing weddings.
Wedding ceremony.
Certain restrictions or prohibitions on marriages.
11.1 Who May Perform Weddings
The following people may perform weddings:
Any ordained clergy.
Authorized representatives of a federally recognized Indian tribe.
New Mexico judges, justices, and magistrates, including probate judges. See Section
40-1-2.
Practical Tip: Probate judges may perform weddings within their county only.
11.2 Marriage License Required
The following conditions apply for marriage licenses:
The bride and groom must present the probate judge with a properly sealed marriage
license issued by the county clerk prior to the ceremony. Section 40-1-14.
The marriage license need not be from the county where the wedding takes place; it
can be from any county. Section 40-1-10.
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Once the license is issued it remains valid until the marriage is performed.
The county clerk charges a $25.00 fee for each marriage license issued. Section 40-1-
11(E).
Currently, there are no health requirements or blood tests required to obtain a
marriage license in New Mexico.
Practical Tip: In 2009 the New Mexico county clerks‘ affiliate issued a policy resolution re: marriage
licenses. County clerks‘ offices will currently issue marriage licenses only if both parties are
personally present to obtain the license. Exceptions, with additional requirements, may
apply for military personnel and very ill applicants. Although incarcerated individuals have
a right to marry, obtaining a license may be more difficult under this policy. Contact the
county clerk for details or with questions.
The Marriage License is on one side of the document, and it authorizes the judge to perform the
marriage ceremony. The county clerk (or the marriage clerk in the county clerk‘s office) fills out
the names of the bride and groom and their city/state of residence on the Marriage License. It is
the county clerk‘s responsibility to verify the identity and age of the applicants. The county clerk
then fills out the ―WITNESS my hand and seal‖ part at the bottom of the Marriage License. The
bride and groom must present this Marriage License to the judge prior to the ceremony. Marriage
licenses do not expire.
On the reverse side of the license is the Marriage Certificate. Except for the recording
language, it is the judge‘s job to fill out all information on the Certificate including the day,
month and year of the ceremony, city/state where the marriage ceremony occurred, the official‘s
title, names and city/state of the bride and groom (this is the same information from the Marriage
License on the reverse side). After the ceremony the bride, groom, two witnesses and judge sign
the certificate. The ―Recorded this __________ day of________...‖ section is filled out by the
county clerk‘s office, which then records the marriage certificate into the public record. The
county clerk can issue certified copies of the marriage certificate in case the newlyweds need to
provide proof of a name change or wedding to social security, employers, insurance companies,
and others.
Practical Tip: There is no requirement that the bride take the last name of the groom. It is a personal
choice to be made by the couple. The judge should inform the bride that she needs to sign
the marriage certificate with the name she wants to be known by. If she wants to change her
last name to that of the groom, she should sign her new name on the marriage certificate.
11.3 New Limits on Fees for Performing Weddings
The following rules apply to wedding fees:
11-3
When performing a wedding on county property during a judge‘s regular work hours, state and
county rules prohibit the judge from taking additional compensation for weddings other than the
judge‘s usual salary.
Under the current Code of Judicial Conduct, a judge cannot even accept a box of candy or gift
card for performing a wedding ceremony. No matter where or when the wedding is performed,
judges may not accept ―any remuneration, including a gratuity‖ for performing a marriage
ceremony. Rule 21-312, commentary [3].
For weddings performed outside of the building and during non-regular work hours, such as
weekends, effective January 1, 2012, probate judges may not charge a fee for performing
weddings. The Code of Judicial Conduct, Rule 21-312, states:
21-312. Compensation for extrajudicial activities.
A. A judge may accept reasonable compensation for extrajudicial activities permitted by this
Code or other law unless such acceptance would appear to a reasonable person to undermine the
judge's independence, integrity, or impartiality. [This section does NOT apply to weddings; see
commentary [3] below.]
B. Conflicting compensated activities. A judge shall not hold any other paid position, judicial or
otherwise, that conflicts with the hours and duties the judge is required to perform for every
judicial position. A judge shall devote the number of hours that is required by any judicial
position held. In no event shall other paid employment or compensable activity hours be
performed simultaneously.
Committee commentary. -
[1] A judge is permitted to accept honoraria, stipends, fees, wages, salaries, royalties, or other
compensation for speaking, teaching, writing, and other extrajudicial activities, provided the
compensation is reasonable and commensurate with the task performed. The judge should be
mindful, however, that judicial duties must take precedence over other activities. See Rule 21-
201 NMRA.
[2] Compensation derived from extrajudicial activities may be subject to public reporting. See
Rule 21-315 NMRA.
[3] No judge may receive any remuneration, including a gratuity, for performing a
marriage ceremony. For reasonable travel expenses, see Rule 21-314 NMRA.
Rule 21-314, Reimbursement of expenses and waivers of fees and charges, states:
A. Unless otherwise prohibited by Rules 21-301 and 21-313A NMRA or other law, a judge
may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or
other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition,
and similar items, from sources other than the judge‘s employing entity, if the expenses or
charges are associated with the judge‘s participation in extrajudicial activities permitted by this
Code.
B. Reimbursement of expenses for necessary travel, food, lodging, or other incidental expenses
shall be limited to the actual costs reasonably incurred by the judge and, when appropriate to the
occasion, by the judge‘s spouse, domestic partner, or guest.
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C. A judge who accepts reimbursement of expenses or waivers or partial waivers of fees or
charges on behalf of the judge or the judge‘s spouse, domestic partner, or guest shall publicly
report such acceptance as required by Rule 21-315 NMRA.
Practical Tip: Judges should carefully read the current Code of Judicial Conduct, including the committee
commentary after each rule, to make sure their conduct does not violate any of the rules.
Chapter 13 contains the complete text of the Code of Judicial Conduct. It is the judge‘s
responsibility to know and follow the Code to avoid disciplinary action by the Judicial
Standards Commission.
11.4 Ceremony
The following guidelines apply to the wedding ceremony:
Two competent witnesses, in addition to the probate judge, are required. See
generally, Sections 40-1-1 through 40-1-20.
There is no established language for a marriage ceremony, but the ceremony should
include the agreement to marry. Marriages can be performed in English or in Spanish
(or other language); some judges note on the Marriage Certificate if a wedding was
performed in Spanish (or other language) for the benefit of the couple.
It is the duty of the probate judge to certify the marriages to the county clerk within
ninety (90) days from the date of the marriage. Certifying the marriage means filling
out the Marriage Certificate discussed above and presenting it to the county clerk. By
law the county clerk must record the license in the county clerk’s records in the
county that issued the license. Section 40-1-15. Often the couple does this
themselves, but be sure and tell them that recording the certificate is required and that
they should have the license recorded before they leave the building. If the wedding is
performed offsite, the judge can take the license to the clerk for recording and then
call the couple after the county clerk has recorded it.)
Medical tests are not currently required for issuance of marriage licenses.
Proxy marriages are allowed in New Mexico (i.e. one party is overseas or
incarcerated). Judges may decline to perform a proxy marriage (for example, one
party is personally present and one party is ―present‖ by telephone or computer video)
if the judge feels uncomfortable with the arrangement.
New Mexico does not allow common law marriages, but if a couple has a valid
common law marriage from another state, New Mexico should honor that marriage.
11-5
Practical Tips: Make sure the parties have a valid marriage license before performing the marriage.
Have the witnesses be at least eighteen (18) to ensure reliability. Although New Mexico‘s
marriage laws do not require witnesses to marriages to be 18, it is probably a good idea.
Witnesses do not have to be U.S. citizens, just anyone competent to observe the ceremony
and sign the marriage license. If it is important to the couple, more than two witnesses can
sign the license in the white spaces around where the ―official‖ witnesses sign or at the top
of the marriage certificate.
11.5 Certain Marriages Restricted or Prohibited
The following restrictions on marriage apply:
Minors between the ages of sixteen and eighteen can marry with the consent of one
parent or guardian. The consent should be acknowledged by a notary or judge.
Minors under the age of sixteen can marry only if authorized by a district judge. A
probate judge cannot authorize the marriage of a person under age sixteen. Section
40-1-6. If the judge is in doubt about the age of the couple, he or she can ask for proof
of age.
Marriages between certain relatives are absolutely void. See Section 40-1-7 for list of
specific relatives.
Practical Tips: Make sure that all blanks on the marriage license are properly filled in before the couple
leaves. Although it is not required, keeping a log of the couples‘ name, the date of the
ceremony, and the marriage license number may be a good idea.
Persons authorized to perform marriage ceremonies who violate the provisions governing
marriage can be tried and convicted of a misdemeanor and fined or sent to jail. Section 40-
1-19.
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CHAPTER 12
Glossary
This chapter provides:
Glossary of terms used in probate court.
“Acceptance/Acceptance of Appointment‖ is the notarized statement where the applicant
agrees to undertake the duties of personal representative of the estate, and abide by the laws of
New Mexico. See Probate Form 4B-105. Judges must have a notarized Acceptance from the
applicant before they can issue the Letters.
"Administration of an Estate" is the process of managing and settling the estate of a
deceased person. This usually involves:
a) giving notice of the administration of the estate;
b) collecting the assets of an estate;
c) paying the valid debts of an estate and expenses of administration;
d) paying any taxes owed; and
e) distributing the remainder of the estate to those who are entitled to it.
“Affidavit of Successor in Interest” or "Small Estate Affidavit" is a sworn, notarized
statement, created pursuant to Section 45-3-1201, which is used to collect assets of a small estate
($50,000 or less), without going through the probate process. Go to www.abogadapress.com and
click on the link for ―legal forms‖ for a sample affidavit.
"Affidavit of Surviving Spouse" is a sworn, notarized statement created pursuant to
Section 45-3-1205, and is used to transfer title of a marital home that is community property, but
is held as sole property or as tenants in common, to a surviving spouse without the need for a
probate. This affidavit is recorded in the county clerk's office where the property is located, and
must be accompanied by the will of the decedent, if any, and a copy of the deed to the subject
property. Also known as a “Homestead Affidavit.”
“Ancillary Proceeding” is one of the methods used to transfer ownership of property
located in New Mexico when the decedent was domiciled in another state and a probate or
administration proceeding is already open in the state where the decedent was domiciled. This
requires the filing of authenticated copies of certain documents from the original probate
proceeding along with the paperwork normally required for an informal proceeding, see Section
45-4-207 (formal ancillary proceeding). See also "Proof of Authority" for another means of
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transferring ownership. If a probate was opened in a formal proceeding in the original
jurisdiction, a formal proceeding may also be required in New Mexico.
"Applicant" is the person who makes a written application to the probate court for an
informal probate of a will and/or informal appointment of a personal representative, see Section
45-1-201(A)(2).
"Application" is the written request to the probate court for an informal probate or
appointment. For more information, see Section 45-1-201(A)(2), Chapter 4 of this manual and
Probate Forms 4B-101 and 4B-102.
“Authenticated” means certified or exemplified. Section 45-1-201(A)(3). Copies
certified by a court to be true and correct are considered ―authenticated‖ under New Mexico‘s
current law. Other states may have different requirements for authenticated copies, such as a
triple certification. Some states call authentication an "Exemplification" or “Exemplified
Copy.” See Chapter 10 for a sample authentication form.
"Beneficiary" is a person who is given a gift by a will (See Section 45-1-201(4)) or
another governing instrument (See Section 45-6-201C.). The probate code and the forms use the
word "Devisee" when referring to a will. See Section 45-1-201(A)(11)).
"Beneficiary Designation" is a designation on an insurance policy, bank account,
transfer on death deed, etc. regarding who receives the property after death of the owner. This
designation takes precedence over any terms set out in a will. Section 45-1-201(A)(4).
"Bond" is a financial security provided to the court by the personal representative and/or
a bonding company to ensure that the personal representative of the estate faithfully does the job
of personal representative. A bond is usually not required in an informal proceeding. However, a
bond may be required if the will requires it, or if a person with an interest in the estate asks the
court to require it and the court orders that a bond be posted. For more information, see Sections
45-3-603 to 45-3-606.
“Certification” is an attestation by the court clerk (or deputy clerk) that a copy of
a document is a true and correct copy of the document on file with the Court. Certified Letters
usually also state that the document remains in full force and effect. Many financial institutions
require that a certification be "current" (i.e. within 30-90 days of the issue date depending on the
financial institution). See Chapter 10 for a sample certification.
"Claim" is a claim against the estate of the decedent, including those for debts of the
decedent that arise before or after the death of the decedent, including the last medical bills and
the funeral costs. The time period during which a claim can be made against the estate can be
shortened from the statutory time limit of one year from the death of the decedent to two (2)
months after actual notice or the publication of a Notice to Creditors. Actual notice to known or
reasonably ascertainable creditors is required. (See Step 3 of Probate Form 4B-012 NMRA for
more information) See also Probate Form 4B-302 NMRA, Sections 45-1-201(A)(7), 45-3-801,
45-3-802 and 45-3-803. Section 45-3-805 addresses the priority for payment of creditors‘ claims.
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"Claimant" is the person or entity (usually, but not always, a creditor) making a claim
against the decedent‘s estate. See also Claim.
“Codicil” is an amendment to a will. The testator must be at least 18 (or an emancipated
minor) and of sound mind to make a codicil. To be valid, a codicil must be executed (signed and
witnessed) in the same manner as a will. See generally Section 45-2-502 and Chapter 2 of this
manual.
"Creditor" is a person or entity to whom a debt is owed by the decedent. The decedent's
estate is the "debtor." Normally, a creditor has one (1) year from the death of the decedent to
file a claim against the estate, see Section 45-3-803(A)(1). Once a known creditor is given actual
notice of the appointment of the personal representative (Probate Form 4B-301), the creditor has
two (2) months to file a claim against the estate (Sections 45-3-801(A), 45-3-803(A)(2)). An
unknown creditor has two months after the first publication of the Notice to Creditors, (Probate
Form 4B-302 NMRA), to file a claim against the estate (Sections 45-3-801(B), 45-3-803(A)(2)).
“Death Certificate” is a document that provides corroborating evidence that the person
whose estate is being filed is actually deceased. It also provides evidence of date of death,
marital status, and decedent‘s domicile at death. Because probate records are public record and
the death certificate contains protected information, such as social security numbers, it should
not be placed in the court file. (See Section 45-1-107; also see Chapter 4 of this manual.)
"Decedent" is the person who has died and whose will is being probated or whose
intestate estate is being administered.
“Deed” is a document that conveys title to real property from one owner to another. See
Chapter 9.
"Demand for Notice" is a written document filed in the court where the probate has
been filed, or in district court of the county where the proceedings would be pending if
commenced. The document must state (1) the name of the decedent, (2) the nature of the filing
person's interest in the decedent's estate, and (3) that person's address. A personal representative
filing an action in probate court is required to ask the district court clerk of that county if any
person has filed a demand for notice relating to the decedent's estate. If a demand for notice has
been filed with the district court, the personal representative is required to send a copy of
everything filed with the court, including every order the judge signs, to the person who has
demanded notice. Any interested person can also file a "demand for notice" with the probate
court after an estate has been filed with the court. After such demand has been filed, no order or
filing to which the demand relates shall be made or accepted without notice as prescribed in
Section 45-1-401. For more information, see Section 45-3-204.
"Descendant" is a decedent‘s child, grandchild, great-grandchild, etc., with the
relationship of parent and child set out in the UPC. For more information, see Section 45-1-
201(9); see also "Issue" and "Heirs," and Chapter 4 of this manual.
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"Devise," when used as a noun, is a gift of real property (land, ranch, house, etc.) or
personal property (other assets) given by a will. When used as a verb, "devise" means to give a
gift of real or personal property. For more information, see Section 45-1-201(10).
"Devisee" means a person, charity, school, church, or other entity named in a will to
receive assets of an estate. Also see "beneficiary. For more information, see Section 45-1-
201(11).
“Disclaimer” is a written statement where an heir or devisee declines to accept an asset
of the estate. This statement must be filed with the court in certain circumstances and provided to
the personal representative of the estate. If real property is involved, the disclaimer may also
need to be filed with the county clerk's office where the property is located. This is generally
done for tax purposes. The Uniform Disclaimer of Property Interests Act, Sections 45-2-1101
through 45-2-1116, contains details.
"Distributee" is any person who receives assets from the estate of the decedent, other
than a creditor or purchaser. For more information, see Section 45-1-201(A)(12).
“Docket” when used as a noun is the court's case files. When used as a verb, docketing is
the process of entering the case and subsequent pleadings into the court's case log.
"Docket Fee" is the thirty dollar ($30.00) fee for filing a case with the probate court.
This fee is statutory (meaning it is set by state law and cannot be changed by individual probate
judges), see Section 34-7-14(A). Payment of the docket fee is required before opening the case
unless the court determines that the applicant has provided sufficient proof of Poverty and
Indigency. See Probate Forms 4B-601 and 4B-602.
“Domicile” is a person's usual and permanent place of abode. Evidence of domicile
includes voter registration location, using the address as a permanent address, etc. It is the place
the person intends to return to, even if currently residing elsewhere. The death certificate usually
indicates where the decedent was domiciled at the time of his/her death. Domicile is important
when determining the venue of the case. See Section 45-3-201(A) and its annotations, as well as
Chapter 1 of this manual.
"Duties of a Personal Representative" are the tasks that a personal representative is
required to do under the probate code, as well as any other responsibilities he/she may have to
the heirs or devisees of the estate as a "fiduciary." See Sections 45-3-705 through 45-3-721 and
Sections 45-3-306 and 45-3-310.
"Estate" is the property of the decedent that is subject to the New Mexico Uniform
Probate Code, Chapter 45 NMSA 1978. For the purposes of probate, an estate generally does not
include things that pass automatically to a listed beneficiary, such as land held as joint tenants,
life insurance proceeds, payable on death accounts or retirement benefits that have a beneficiary
designation. For more information, see Section 45-1-201(15). This is not the same as the
taxable or gross estate, which includes all assets owned by the decedent at the time of his or
her death for purposes of calculating estate tax liability.
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“Ex Parte Communication” is a prohibited communication between the court and one
party without the consent of, or notice to, another party who would be adversely affected by the
communication. In the interest of impartiality and giving every party the right to be heard, judges
are prohibited from permitting or even considering such communications outside of the
presences of all parties concerned. (See Code of Judicial Conduct Rule 21-209 governing ex
parte communications and Chapter 8.)
“Executor” is another term for ―personal representative.‖
“Family Allowance” is a $30,000.00 allowance given to a decedent‘s surviving spouse
(or minor or dependent children if no spouse) that is exempt from and has priority over any
claims against the estate. See Section 45-2-402 and Chapter 10 of this manual.
"Fiduciary" is a person or entity, who acts primarily for another's benefit in matters
connected with that duty. A fiduciary is held to the highest degree of good faith in performing his
or her duties. A personal representative is a fiduciary. See Section 45-1-201(14) for a list of who
are considered to be fiduciaries.
“Filing Fee” is the Thirty Dollar ($30.00) fee required for filing a case with the probate
court. See also "Docket Fee," Section 34-7-14(A).
“Formal Probate” is a court proceeding to probate a will and/or appoint a personal
representative of an estate. Formal probates are started by filing a Petition with notice to
interested persons required to be given at least 14 days prior to the hearing before a judge for the
appointment of the personal representative. Formal probates may only be filed in district court
and may include determinations of heirship and the validity of wills. May also be called ―Formal
Testacy‖ or ―Formal Appointment‖ proceedings. See Sections 45-3-401 through 45-3-414.
“Gross Estate” is the entire estate of the deceased person, no matter how the assets are
titled, and includes the total fair market value of the decedent's assets at the time of death,
without any deductions.
"Heirs" are those persons who are entitled to inherit the property of the decedent under
the laws of intestate succession. Section 45-1-201(A)(23). This usually includes the surviving
spouse, children, and, if any of them are deceased, their heirs. Heirs are always entitled to notice
in probate proceedings, even if a will excludes them from inheriting, although they can decline
notice by filing a written Waiver of Notice with the court. For information on priority among
heirs, see Sections 45-2-102 to 45-2-108. See also Chapter 4.
“HIPAA” is the Health Insurance Portability and Accounting Act of 1996 and addresses
the privacy of medical records. Many hospitals interpret this act to mean that that the privacy of
medical records extends beyond a person‘s death and use HIPAA as a way to deny the heirs of
an estate access to a decedent‘s medical records unless they open a probate to step into the shoes
of the deceased person.
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“Holographic Will” is a will entirely handwritten document, dated and signed by the
testator, but not signed by the required witnesses. Although New Mexico does not recognize
holographic wills made in New Mexico, the court may accept a holographic will if it was validly
made in a state that allows them. See Chapter 2 for details.
"Homestead Affidavit" is an affidavit used to transfer title to a marital home, which is
community property, to a surviving spouse without the need for a court proceeding. For more
information, see Section 45-3-1205 and Chapter 10.
“Informal Appointment” is a court proceeding to appoint a personal representative
when the decedent had no valid will. Informal appointment proceedings may be filed in probate
court or district court and are started by filing an application. No notice to interested persons and
no hearings are required prior to the appointment of the personal representative. See Sections 45-
3-301 through 45-3-311 and Chapter 4 of this Manual.
“Informal Probate” is a court proceeding to probate a will and usually includes a
request to informally appoint a personal representative of an estate. Informal probates may be
filed in probate court or district court and are started by filing an application. No notice to
interested persons and no hearings are required prior to the appointment of the personal
representative. See Sections 45-3-301 through 45-3-311 and Chapter 4 of this manual.
“Inspection of Public Records Act,” also known as IPRA, states that every person has a
right to inspect public records of this state. New Mexico‘s law is set out in Sections 14-2-1
through 14-2-9. See also Section 34-7-20
"Interested Person" includes heirs, devisees, children, spouses, creditors, beneficiaries
and any others having a property right in or claim against a trust estate or the estate of a
decedent, a minor protected person or an incapacitated person. Creditors and the state, in certain
circumstances, are interested persons. Section 45-1-201(26). After the filing of the initial
application, heirs and devisees are ―interested persons‖ entitled to notice regarding the probate
proceedings. See Section 45-3-705.
"Intestate" means having died:
(a) without a will;
(b) without a valid will; or,
(c) with an incomplete will.
"Issue" is all of a decedent‘s descendants, of all generations, with the relationship of
parent and child set out in the UPC, of a deceased person. Section 45-1-201(A)(27).
“Jurisdiction” is the authority for a court to act on a matter. Probate courts are courts of
"limited jurisdiction," and only have the authority to act over informal probate/appointment
proceedings. See 45-1-302(C) and Chapter 1.
“Letters” is the document issued by the court, which gives the personal representative
the authority to act on behalf of the estate. Letters Testamentary are issued in a testate case;
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Letters of Administration are issued in an intestate case. There are also Letters of Special
Administration (for the appointment of a Special Administrator, Letters of Successor Personal
Representative, etc.). (See probate forms 4B-106 and 4B-107.)
“Missing Heir” is an heir who cannot be located. If an heir cannot be found, the personal
representative shall distribute the share of the missing person to his conservator, if any.
Otherwise, the personal representative shall sell the share of the missing person and distribute the
proceeds to the state treasurer as prescribed by the Unclaimed Property Act. (See Section 45-3-
914 and Chapter 10.)
“Missing Person” means a person whose whereabouts are unknown to the person's
custodian or immediate family member. Only the district court has jurisdiction over the estates of
missing persons (See Section 45-1-302).
―NMSA‖ stands for New Mexico Statutes Annotated, the ‗official‘ name of the laws of
our state.
"Notarization” is the attestation by a notary public that a document was signed under
oath and that the person whose signature appears on the document is that person. Notaries in
New Mexico must be authorized by the Secretary of State to act in this capacity. To notarize is
the act of the notary verifying the signer‘s identity, attesting to the signature, and affixing the
notary‘s signature and seal to the document. See Sections 14-14-1 through 14-14-11 for further
information on notarial acts. Certain documents filed in a probate case must be notarized before
being accepted by the court for filing.
"Notice" or "giving notice" is a written "announcement" to persons entitled to know
what has transpired or will transpire in a case. When personal representatives comply with notice
requirements, they give interested persons information about what is happening in the case, and
protect the estate (and themselves) from claims that proper procedures were not followed.
Generally, notice should be sent to:
(a) all the heirs or devisees of an estate;
(b) persons who have or may have an interest in the estate of the decedent;
(c) known creditors
(d) anyone who asks for notice; and,
(e) anyone who has filed a demand for notice.
“Omitted Children” is, for the purpose of the Uniform Probate Code, children who were
born or adopted after the execution of the testator‘s will. See Section 45-2-302 and Chapter 10 of
this manual.
“Omitted Spouse” is for the purpose of the Uniform Probate Code, a spouse who
married the testator after the testator executed his will, see Section 45-2- 301. This can also apply
to a spouse who is entitled to family and personal property allowances despite provisions in the
will to the contrary (See annotations to updates for Section 45-2-402 and Chapter 10 of this
manual.
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“Open Records Act” is the Inspection of Public Records Act, Sections 14-2-1 through
14-2-9. Also see Section 34-7-17 through 34-7-21 for records that specifically pertain to probate
courts.
“Order for Informal Probate of Will/Appointment of Personal Representative” is
the document signed by the judge making findings that the requirements of the probate code
have been met, entering a will, if any, into probate and/or appointing a personal representative.
The order usually also stipulates that Letters be issued "upon qualification and acceptance." The
issuance of the Letters gives the personal representative the authority to act, not the order. A probate judge may also need to sign orders concerning other matters that arise in the case. (See
Section 45-303 and 45-3-308; also see probate forms 4B-103 and 4B-104.)
―Per Capita‖ is one method of determining the distribution of the assets of an estate to
the heirs. See ―(by) Representation‖ below and Section 45-2-709(B).
―Per Stirpes‖ is one method of determining the distribution of the assets of an estate to
the heirs. In per stirpes the descendants of a deceased heir or devisee split that person‘s share.
See 45-2-709(C).
"Personal Property" is all property that is not land, real estate or real property. Some
examples are bank accounts, stocks, bonds, insurance policies, pension plans, jewelry, furniture
and motor vehicles.
“Personal Property Allowance” is a $15,000.00 allowance given to a decedent‘s
surviving spouse (or children if no spouse) that is exempt from and has priority over any claims
against the estate. (See Section 45-2-403, supplement and Chapter 10 of this manual.)
"Personal Representative" is the person appointed by the court to administer the estate
of the decedent. The personal representative must give notice of his/her appointment, pay claims
of the estate, and then distribute the estate according to the will or to the laws of intestate
succession, if there is no will. This person is sometimes called an "executor/executrix" or
"administrator." A personal representative appointed in an informal proceeding generally has
the authority to do almost anything the decedent could have done with his/her property during
his/her lifetime, see Section 45-3-715.
“Personal Representative’s Deed” is a deed from the personal representative
transferring real property to the person(s) entitled to receive it under a will or the laws of
intestate succession or to a person (or entity) that has purchased the property from the estate. The
deed must be recorded with the county clerk's office in the county where the property is located.
A certified copy of the deed may also be filed with the probate court. See Chapter 9 for
additional information.
“Pleading” is a legal document filed with the court. Pleadings and papers filed in the
court include a caption or heading that identifies the state, county, and name of the court; the
names of the parties; and a title describing the type of paperwork being submitted.
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“POD” means ―payable on death‖ and is a beneficiary designation for bank accounts,
U.S. savings bonds, and other accounts. Upon proof of death, the beneficiary/POD designee
should be able to receive these accounts without a probate proceeding, unless the
beneficiary/POD designee is ―my estate‖ or the beneficiary has predeceased the owner. See
Section 45-6-201(H) and Section 45-6-212.
"Power of Attorney" means a writing or other record that grants authority to an agent to
act in the place of the principal during the principal‘s lifetime. A power of attorney terminates
upon the death of the person (the principal) who granted the power of attorney. The fact that a
person had power of attorney does not give that person priority for appointment as personal
representative. See Sections 45-5B-101 to 45-5B-403. See Section 45-5B-301 for a statutory
power of attorney form.
“Practicing Law without a License,” also known as the ―Unauthorized Practice of
Law‖ is providing legal advice to someone or preparing legal documents or pleadings for them
without being an attorney licensed in New Mexico. Court personnel must be careful to make sure
they are providing only information and not legal advice.
“Pro Se” is the Latin phrase that means acting without an attorney or ―on one‘s own.‖
"Probate" technically is the court procedure by which a will is proved to be valid or
invalid. Common usage of this term, however, includes all matters relating to the administration
of an estate, including estates with wills and intestate estates.
"Probate Code" is the body of law within the New Mexico statutes that governs the
estates of deceased persons. The Probate Code also deals with the administration of trusts and the
protection of minors and persons under disability, but probate courts do not have jurisdiction
(authority) to act in these matters. The New Mexico Probate Code is based upon the Uniform
Probate Code (UPC)--a national model system that is used, at least in part, in 16 states. The New
Mexico Uniform Probate Code is Section 45 (Pamphlet 67) of the New Mexico Statutes
Annotated. The current version is the 2008 Replacement Pamphlet with a 2012 Cumulative
Supplement. Judges should always have the most current edition of the UPC, which is available
from the New Mexico Compilation Commission, New Mexico Compilation Commission, PO
Box 15549, Santa Fe NM 87592-5549, (505) 827-4821.
“Probate Estate” is that part of a deceased person's estate that is governed by the
provisions of the Uniform Probate Code. It does not generally include property held in joint
tenancy or assets with named beneficiaries, such as insurance policies, payable on death
accounts, etc.
“Proof of Authority” is documentation filed with the court showing that a person has
been appointed by a court in another state to act on behalf of the estate of a deceased person.
Proof of authority does not involve the opening of a full probate (although the person filing the
proof pays the usual filing fee) and does not involve the issuance of Letters. Filing the proof of
authority with the probate court gives a personal representative appointed in another state the
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authority to act in New Mexico, see Section 45-4-204. However, depending on the degree of
authority needed, an Ancillary Proceeding may be required. See Chapter 9.
"Property" includes both real and personal property or any right or interest therein and
means anything that may be the subject of ownership. Section 45-1-201(A)(40).
"Real Property" includes land, houses, farms, ranches, leases, oil, gas, mineral, water
and timber rights.
“(by) Representation” is the method used by New Mexico‘s Uniform Probate Code for
intestate distribution of the estates of deceased heirs. It involves pooling the shares of deceased
heirs on each level of heirship and dividing it into equal shares for each survivor on that level.
See Sections 45-2-106 and 45-2-709(B) and Section 4.5.1 of Chapter 4 for more detailed
information and examples.
"Revoked or Revocation" when used with these forms refers to a will or other
document that the decedent canceled during his/her lifetime. If a will is revoked, it has no effect.
See Section 45-2-507 and Chapter 2 of this manual for more information about revoking wills.
“Safe Deposit Box” is a secure storage compartment at a financial institution where
people may store their original wills and other important documents during their lifetime. For
regulations concerning accessing safe deposit boxes after a person‘s death, see Sections 58-1-14
(Banking Generally); Section 58-10-109 (Saving & Loan Institutions); Section 58-11A-4
(Leasing of Safe Deposit Facilities) and Chapter 2 of this manual.
“Seal” means a notary seal or stamp, seal of the court, etc., which proves the authenticity
of a document.
"Sign" means with present intent to authenticate or adopt a record other than a will: (a)
to execute or adopt a tangible symbol; or (b) to attach to or logically associate with the record an
electronic symbol, sound or process. Section 45-1-201(A)(46).
"Small Estate Affidavit" is the affidavit used to collect personal property of the
decedent when a court proceeding for the transfer of estate assets is not necessary and the total
value of the estate is worth less than $50,000.00. Also called Affidavit of Successor in Interest,
defined in detail above
“Special Administrator” is a person who has been appointed by the court to act in a
limited capacity when an appointment is needed immediately. A special administrator who is
informally appointed does not have the full powers of a personal representative and cannot
distribute estate assets. See Sections 45-3-614 through 45-3-618 and Chapter 3 for further
information and sample forms.
“Statute of Limitation” is a law that sets a time limit for starting a case. Certain civil
claims must be filed within three or four years, depending on the law that governs the claim. In
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general, probate cases must be filed no more than three years after a decedent‘s death (but see
Section 45-3-108 for certain exceptions to this three-year limit).
"Successors" means persons, other than creditors, who are entitled to property of a
decedent under the decedent's will or the Uniform Probate Code. Section 45-1-201(A)(49).
"Successor personal representative" means a personal representative, other than a
special administrator, who is appointed to succeed a previously appointed personal
representative. Section 45-1-201(A)(49).
"Testate" means having a valid will. See 45-2-502 and Chapter 2 for what constitutes a
valid will.
"Testator" is someone making, or who has made, a will, or someone who dies leaving a
valid will. Under New Mexico law, ―testator‖ includes an individual of either gender. Section
45-1-201(A)(54). Other states may call a female testator a "testatrix.” See Section 45-2-501 for
who may make a will.
“TODD: is a Transfer on Death Deed that grants ownership rights upon the death of
grantor. TODDs, to have effect, must be recorded with the County Clerk‘s office during the
grantor‘s lifetime. See Section 45-6-401 for statutory requirements and sample form.
“Trust” is an entity set up during a person‘s lifetime through a written trust agreement.
Trust assets must be transferred into the name of the trustee of the trust. If a trust is properly
funded, a court proceeding usually is not required upon the death of the trustor, as the trustee
holds the assets of the estate (and not the decedent). See also Section 45-1-201(A)(55) and
Chapter 10.
“Unauthorized Practice of Law” also known as ―Practicing Law without a License‖ is
providing legal advice to someone or preparing legal documents or pleadings for them without
being an attorney licensed in New Mexico. Court personnel must be careful to make sure they
provide only information and not legal advice. See Chapter 8 for specific statutory cites and
examples.
“Uniform Probate Code” for our purposes, is the New Mexico Statutes Annotated
(NMSA) (laws) governing probates, also known as Chapter 45, Pamphlet 67. Judges should
also be sure they have the most recent supplement to the Probate Code! See ―Probate Code‖
definition for specific information.
"Unrevoked," when used in these forms, refers to a will or other document that has not
been invalidated or canceled.
"Venue" is the place where the case should be filed. Generally, a probate is either filed
in the probate court or the district court in the county where the decedent died or, if the decedent
did not live in New Mexico, in the probate court or the district court in the county where the
decedent owned property. For more information, see Section 45-3-201 and Chapter 1.
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“Verification” is a formal written declaration made in the presence of an authorized
person, including a notary, where one swears to the truth of the statements made in the preceding
document.
“Verified Statement of Personal Representative” is a sworn statement from the
personal representative of the estate that they have completed all duties necessary to administer
the estate of decedent and that they are ready to close the estate. For specific requirements see
Section 45-3-1003 and Probate Form 4B-502.
―Wedding” is a ceremony to solemnize the contract of matrimony. See Section 40-1-1
through 40-1-3 and Chapter 11 for marriage license requirements.
"Will" is a document that provides for the distribution of the assets of a person's estate
upon death. New Mexico‘s definition of ―will‖ includes a codicil, but does not include a
holographic will. Section 45-1-201(A)(57). A will also typically designates a personal
representative and can appoint a guardian for minor children. Certain formalities must be
followed when executing the will to make sure the will is valid according to New Mexico law. A
will is sometimes referred to as "Last Will and Testament.” For more information, see Section
45-2-502 and Chapter 2.
“Witnesses” are, for purposes of the Uniform Probate Code, persons attesting to having
been present when a testator signed his/her will. An individual generally competent to be a
witness may act as a witness to a will. See Section 45-2-505 and Chapter 2. In New Mexico an
interested person may witness a will. The notary may also serve as one of the witnesses to a will.
There also must be two competent witnesses when judges perform a wedding ceremony.
"Wrongful Death Act" is the section of New Mexico's statutes that governs the
procedures one must follow when filing a claim for wrongful death. In New Mexico, a personal
representative is the only one with the authority to file a wrongful death claim on behalf of the
estate of a deceased person. However, the distribution of any proceeds from the wrongful death
claim is not governed by the probate code, but by the terms of the Wrongful Death Act. See
Section 41-2-3 and Chapter 10.
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CHAPTER 13
Code of Judicial Conduct
This chapter provides:
Code of Judicial Conduct, with commentary.
Important notes:
The Code is issued by the New Mexico Supreme Court and is binding on the New
Mexico judiciary.
Not all sections of the Code of Judicial Conduct apply to all judges. The ―Application‖
provisions at the beginning of the Code (before Rule 21-100) address these limitations.
A probate judge is a ―Continuing Part-Time Judge.‖
New Mexico Code of Judicial Conduct
(effective Jan. 1, 2012)
Preamble
[1] An independent, fair, and impartial judiciary is indispensable to our system of justice. The
United States legal system is based upon the principle that an independent, impartial, and
competent judiciary, composed of men and women of integrity, will interpret and apply the law
that governs our society. Thus, the judiciary plays a central role in preserving the principles of
justice and the rule of law. Inherent in all the rules contained in this Code are the precepts that
judges, individually and collectively, must respect and honor the judicial office as a public trust
and strive to maintain and enhance confidence in the legal system.
[2] Judges should maintain the dignity of judicial office at all times and avoid both
impropriety and the appearance of impropriety in their professional and personal lives. They
should aspire at all times to conduct that ensures the greatest possible public confidence in their
independence, impartiality, integrity, and competence. At the same time, the Code recognizes
that a judge‘s participation in community activities provides important benefits to both society
and to the judge personally. The Code seeks to strike a balance between activities that may
create an appearance of impropriety or bias and therefore affect the public‘s perception of
judicial fairness and those activities that are a part of necessary and healthy public life. Judges
often are asked to participate in activities on behalf of charitable non-profit organizations. The
Code permits such activities with certain limitations, primarily relating to fund-raising activities.
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A judge should always be mindful to avoid any participation that would create the appearance of
impropriety or lend the prestige of judicial office to private, fund-raising activities.
[3] The Code of Judicial Conduct establishes standards for the ethical conduct of judges and
judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and
judicial candidates, who are governed in their judicial and personal conduct by general ethical
standards as well as by the Code. The Code is intended, however, to provide guidance and assist
judges in maintaining the highest standards of judicial and personal conduct and to provide a
basis for regulating their conduct through disciplinary agencies.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Scope
[1] The Code of Judicial Conduct consists of four canons, numbered rules under each canon,
and comments that generally follow and explain each rule. Scope and terminology sections
provide additional guidance in interpreting and applying the Code. An application section
establishes when the various rules apply to a judge or judicial candidate.
[2] The canons state overarching principles of judicial ethics that all judges must observe.
Although a judge may be disciplined only for violating a rule, the canons provide important
guidance in interpreting the rules. When a rule contains a permissive term, such as "may" or
"should," the conduct being addressed is committed to the personal and professional discretion
of the judge or candidate in question, and no disciplinary action should be taken for action or
inaction within the bounds of such discretion.
[3] The comments that accompany the rules serve two functions. First, they provide guidance
regarding the purpose, meaning, and proper application of the rules. They contain exemplary
material and, in some instances, provide examples of permitted or prohibited conduct.
Comments neither add to nor subtract from the binding obligations set forth in the rules.
Therefore, when a comment contains the term "must," it does not mean that the comment itself is
binding or enforceable; it signifies that the rule in question, properly understood, is obligatory as
to the conduct at issue.
[4] Second, the comments identify aspirational goals for judges. To implement fully the
principles of this Code as articulated in the canons, judges should strive to exceed the standards
of conduct established by the rules, holding themselves to the highest ethical standards and
seeking to achieve those aspirational goals, thereby enhancing the dignity of the judicial office.
[5] The rules of the Code of Judicial Conduct are rules of reason that should be applied
consistent with constitutional requirements, statutes, other court rules, and decisional law, and
with due regard for all relevant circumstances. The rules should not be interpreted to impinge
upon the essential independence of judges in making judicial decisions.
[6] Although the black letter of the rules is binding and enforceable, it is not contemplated that
every transgression will result in the imposition of discipline. Whether discipline should be
imposed should be determined through a reasonable and reasoned application of the rules and
should depend upon factors such as the seriousness of the transgression, the extent of any pattern
of improper activity, whether there have been previous violations, and the effect of the improper
activity upon the judicial system or others. See Judicial Standards Commission Rule 30 for
factors considered in recommending the imposition of discipline.
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[7] The Code is not designed or intended as a basis for civil or criminal liability. Neither is it
intended to be the basis for litigants to seek collateral remedies against each other or to obtain
tactical advantages in proceedings before a court.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Terminology
"Aggregate," in relation to contributions for a candidate, means not only contributions in cash or
in kind made directly to a candidate‘s campaign committee, but also all contributions made
indirectly with the understanding that they will be used to support the election of a candidate or
to oppose the election of the candidate‘s opponent. See Rule 21-315 NMRA.
"Appearance of impropriety" includes conduct that would create in reasonable minds a
perception that the judge violated the Code or engaged in other conduct that reflects adversely
on the judge‘s honesty, impartiality, temperament, or fitness to serve as a judge.
"Appropriate authority" means the authority with responsibility for initiation of disciplinary
process in connection with the violation to be reported. See Rules 21-214 and 21-215 NMRA.
"Contribution" means both financial and in-kind contributions, such as goods, professional or
volunteer services, advertising, and other types of assistance, which, if obtained by the recipient
otherwise, would require a financial expenditure. See Rules 21-211, 21-301, 21-307, 21-313,
21-401, 21-402, and 21-404 NMRA.
"De minimis," in the context of interests pertaining to disqualification of a judge, means an
insignificant interest that could not raise a reasonable question regarding the judge‘s
impartiality. See Rule 21-211 NMRA.
"Domestic partner" means a person with whom another person maintains a household and an
intimate relationship, without a legally recognized marriage. See Rules 21-211, 21-213, 21-313,
and 21-314 NMRA.
"Economic interest" means ownership of more than a de minimis legal or equitable interest.
Except for situations in which the judge participates in the management of such a legal or
equitable interest, or the interest could be substantially affected by the outcome of a proceeding
before the judge, it does not include the following:
(1) an interest in the individual holdings within a mutual or common investment fund;
(2) an interest in securities held by an educational, religious, charitable, fraternal, or civic
organization in which the judge or the judge‘s spouse, domestic partner, parent, or child serves
as a director, an officer, an advisor, or other participant;
(3) a deposit in a financial institution or deposits or proprietary interests the judge may
maintain as a member of a mutual savings association or credit union, or similar proprietary
interests; or
(4) an interest in the issuer of government securities held by the judge. See Rules 21-103 and
21-211 NMRA.
"Fiduciary" includes relationships such as executor, administrator, trustee, or guardian. See
Rules 21-211, 21-302, and 21-308 NMRA.
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"Impartial," "impartiality," and "impartially" mean absence of bias or prejudice in favor of, or
against, particular parties or classes of parties, as well as maintenance of an open mind in
considering issues that may come before a judge. See Canons 1, 2, and 4, and Rules 21-102, 21-
202, 21-210, 21-211, 21-213, 21-301, 21-312, 21-313, 21-401, and 21-402 NMRA.
"Impending matter" is a matter that is imminent or expected to occur in the near future. See
Rules 21-209, 21-210, 21-313, and 21-401 NMRA.
"Impropriety" includes conduct that violates the law, court rules, or provisions of this Code and
conduct that reflects adversely on the judge‘s honesty, impartiality, temperament, or fitness to
serve as a judge. See Canon 1 and Rule 21-102 NMRA.
"Independence" means a judge‘s freedom from influence or controls other than those
established by law. See Canons 1 and 4, and Rules 21-102, 21-301, 21-312, and 21-402
NMRA.
"Integrity" means probity, fairness, uprightness, and soundness of character. See Canon 1 and
Rule 21-102 NMRA.
"Judicial candidate" means any person, including a sitting judge, who is seeking selection for
or retention in judicial office by election or appointment. A person becomes a candidate for
judicial office as soon as he or she makes a public announcement of candidacy, declares or files
as a candidate with the election or appointment authority, authorizes or, where permitted,
engages in solicitation or acceptance of contributions or support, or is nominated for election or
appointment to office. See Rules 21-211, 21-400, 21-401, 21-402, 21-403, and 21-404 NMRA.
"Knowingly," "knowledge," "known," and "knows" means actual knowledge of the fact in
question. A person‘s knowledge may be inferred from circumstances. See Rules 21-211, 21-
213, 21-215, 21-216, 21-306, and 21-401 NMRA.
"Law" encompasses court rules as well as statutes, constitutional provisions, and decisional law.
See Rules 21-101, 21-201, 21-202, 21-206, 21-207, 21-209, 21-301, 21-304, 21-312, 21-313, 21-
314, 21-315, 21-401, 21-402, 21-404, and 21-405 NMRA.
"Member of the candidate’s family" means a spouse, domestic partner, child, grandchild,
parent, grandparent, or other relative or person with whom the candidate maintains a close
familial relationship.
"Member of the judge’s family" means a spouse, domestic partner, child, grandchild, parent,
grandparent, or other relative or person with whom the judge maintains a close familial
relationship. See Rules 21-307, 21-308, 21-310, and 21-311 NMRA.
"Member of the judge’s family residing in the judge’s household" means any relative of a
judge by blood or marriage, or a person treated by the judge as a member of the judge‘s family,
who resides in the judge‘s household. See Rules 21-211 and 21-313 NMRA.
"Nonpublic information" means information that is not available to the public. Nonpublic
information may include, but is not limited to, information that is sealed by statute or court order
or impounded or communicated in camera, and information offered in grand jury proceedings,
presentencing reports, dependency cases, or psychiatric reports. See Rule 21-305 NMRA.
"Pending matter" is a matter that has commenced. A matter continues to be pending through
any appellate process until final disposition. See Rules 21-209, 21-210, 21-313, 21-401 NMRA.
"Personally solicit" means a direct request made by a judge or a judicial candidate for financial
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support or in-kind services, whether made by letter, telephone, or any other means of
communication. See Rules 21-307, 21-401, and 21-404 NMRA.
"Political organization" means a political party or other group sponsored by or affiliated with a
political party or candidate, the principal purpose of which is to further the election or
appointment of candidates for political office. For purposes of this code, the term does not
include a judicial candidate‘s campaign committee as authorized by Rule 21-404 NMRA. See
Rules 21-401 and 21-402.
"Public election" includes primary and general elections, partisan elections, non-partisan
elections, and retention elections. See Rules 21-402 and 21-404.
"Third degree of relationship" includes the following persons: great-grandparent, grandparent,
parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece. See
Rule 21-211 NMRA.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Application
I. APPLICABILITY OF THIS CODE
A. The provisions of this Code apply to all full-time judges. Parts II through IV of this section
identify provisions that apply to three categories of part-time judges only while they are serving
as judges, and provisions that do not apply to part-time judges at any time. All other rules are
therefore applicable to part-time judges at all times. The three categories of judicial service in
other than a full-time capacity are necessarily defined in more general terms because of the
widely varying forms of judicial service. Canon 4 applies to judicial candidates.
B. A judge, within the meaning of this Code includes, but is not limited to, all judges and
justices and all judicial candidates of the Supreme Court, Court of Appeals, district court,
magistrate court, metropolitan court, probate court, and municipal court. Any person who serves
as a full-time or part-time judge is a "judge" within the meaning of this Code.
II. CONTINUING PART-TIME JUDGE
A judge who serves repeatedly on a part-time basis by election, under a continuing appointment,
or by contract
A. is not required to comply
(1) with Rules 21-401C(1) through (6) NMRA (Political activity and elections for judges who
are not currently running in either a partisan or retention election) except while serving as a
judge; or
(2) at any time with Rules 21-304 (Appointments to governmental positions), 21-308A
(Appointments to fiduciary positions), 21-309 (Service as arbitrator or mediator), 21-310
(Practice of law), and 21-311B NMRA (Financial or business activities); and
B. shall not practice law in the court on which the judge serves or in any court subject to the
appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a
proceeding in which the judge has served as a judge or in any other proceeding related thereto.
III. PERIODIC PART-TIME JUDGE
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A periodic part-time judge who serves or expects to serve repeatedly on a part-time basis, but
under a separate appointment or by contract for each limited period of service or for each matter
A. is not required to comply
(1) with Rule 21-401C(1) through (6) NMRA (Political activity and elections for judges who
are not currently running in either a partisan or retention election) except while serving as a
judge; or
(2) at any time with Rules 21-304 (Appointments to governmental positions), 21-308A
(Appointments to fiduciary positions), 21-309 (Service as arbitrator or mediator), 21-310
(Practice of law), and 21-311B NMRA (Financial or business activities); and
B. shall not practice law in the court on which the judge serves or in any court subject to the
appellate jurisdiction of the court in which the judge serves, and shall not act as a lawyer in a
proceeding in which the judge has served as a judge or in any other proceeding related thereto.
IV. PRO TEMPORE PART-TIME JUDGE
A pro tempore part-time judge who serves or expects to serve once or only sporadically on a
part-time basis under a separate appointment or by contract for each period of service or for each
case heard is not required to comply
A. except while serving as a judge, with Rules 21-204 (External influences on judicial
conduct), and 21-302 NMRA (Appearances before governmental bodies and consultation with
government officials); and Rule 21-401C(1) through (6) NMRA (Political activity and elections
for judges who are not currently running in either a partisan or retention election); or
B. at any other time with Rules 21-304 (Appointments to governmental positions), 21-308A
(Appointments to fiduciary positions), 21-309 (Service as arbitrator or mediator), 21-310
(Practice of law), and 21-311B NMRA (Financial or business activities).
V. TIME FOR COMPLIANCE
A person to whom this Code becomes applicable shall comply immediately with its provisions,
except that those judges to whom Rules 21-308 (Appointments to fiduciary positions) and 21-
311 NMRA (Financial or business activities) apply shall comply with those rules as soon as
reasonably possible, but in no event later than one year after the Code becomes applicable to the
judge.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. — Applicability of This Code
[1] The rules in this Code have been formulated to address the ethical obligations of any person who serves a judicial function and are premised upon the supposition that a uniform system of ethical principles should apply to all those authorized to perform judicial functions.
[2] The determination of which category and, accordingly, which specific rules apply to an individual judicial officer, depends upon the facts of the particular judicial service.
[3] In recent years many jurisdictions have created what are often called "problem solving" courts, in which judges are authorized by court rules to act in nontraditional ways. For example, judges presiding in drug courts and monitoring the progress of participants in those courts’ programs may be authorized and even encouraged to communicate directly with social workers, probation officers, and others outside the context of their usual judicial role as independent decision makers on issues of fact and law. When local rules specifically authorize conduct not otherwise permitted under these rules, they take precedence over
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the provisions set forth in the Code. Nevertheless, judges serving on "problem solving" courts shall comply with this Code except to the extent local rules provide and permit otherwise.
Continuing Part-Time Judge
[4] When a person who has been a continuing part-time judge is no longer a continuing part-time judge, that person may act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto only with the informed consent of all parties, and pursuant to any applicable rules of professional conduct. An adopting jurisdiction should substitute a reference to its applicable rule.
Time For Compliance
[5] If serving as a fiduciary when selected as a judge, a new judge may, notwithstanding the prohibitions in Rule 21-308 NMRA, continue to serve as fiduciary, but only for that period of time necessary to avoid serious adverse consequences to the beneficiaries of the fiduciary relationship and in no event longer than one year. Similarly, if engaged at the time of judicial selection in a business activity, a new judge may, notwithstanding the prohibitions in Rule 21-311 NMRA, continue in that activity for a reasonable period, but in no event longer than one year.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
21-100. Canon 1.
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary
and shall avoid impropriety and the appearance of impropriety.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
21-101. Compliance with the law.
A judge shall respect and comply with the law, including the Code of Judicial Conduct.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] Judges must comply with the law, including the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and the judicial system.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
ANNOTATIONS
Improper comments. — A judge who was critical of the legal system during voir dire, implying that the system is governed by legislative whim rather than by well-settled principles, and who told the jury during trial of the consequences of their verdict, in terms of the mandated sentences for first- and second-degree murder committed reversible error by depriving defendant of a fair trial. State v. Henderson, 1998-NMSC-018, 125 N.M. 434, 963 P.2d 511 (decided prior to the 2011 recompilation).
JUDICIAL REPRIMANDS
Involvement in the trial of a case pending before the judge. — Where in one DWI trial, the judge stepped off the bench to assist an officer in presenting the officer’s case and in sight and earshot of the jury told the court manager that the defendant "blew a .3", the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011
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recompilation).
Unlawfully claiming per diem expenses. — Where a judge wanted to attend training in another municipality; the judge certified and submitted a travel voucher claiming reimbursement for per diem expenses; the training was cancelled; the judge arranged to pick up the training material in the other municipality, drove to the other municipality, and then drove to another municipality out-of-state; and the judge told the treasurer of the municipality that the training had been cancelled because of bad weather, the judge’s conduct constituted willful misconduct in office. In re Lozano, S.Ct. No. 29,264 (Filed June 8, 2010) (decided prior to the 2011 recompilation).
Improperly touching a party. — Where at a hearing in a case involving a building permit, the judge kept moving the judge’s chair closer to the code enforcement officer and the defendant, kept moving the judge’s hands around, and touched the defendant with the result that the code enforcement officer and the defendant felt uncomfortable and moved away from the judge; and prior to the hearing, the mayor of the municipality had told the judge that the code enforcement officer had filed an EEOC claim against the judge based on improper touching, the judge’s conduct constituted willful misconduct in office. In re Lozano, S.Ct. No. 29,264 (Filed June 8, 2010) (decided prior to the 2011 recompilation).
Insufficient evidence of willful misconduct. — Where a municipal judge accepted an uncounseled guilty plea and sentenced the defendant; the defendant’s attorney appealed to the district court; in the district court, the municipal attorney made an oral motion to dismiss the appeal and the district court judge allowed the defendant to enter another guilty plea; when the municipal judge received the district court judgment and discovered that a written motion to dismiss had not been filed by the municipal attorney, the municipal judge believed that the municipal attorney and the defendant’s attorney had misrepresented the municipal proceedings to the district court judge; after researching the law of contempt and consulting the Municipal League and the Attorney General’s Office, the municipal judge charged the municipal attorney and the defendant’s attorney with contempt; and when the municipal judge reviewed the district court proceedings and discovered that a motion to dismiss had been made, the municipal judge dismissed the contempt charges, the evidence did not clearly and convincingly demonstrate that the municipal judge’s actions constituted willful misconduct in office. In re Locatelli, 2007-NMSC-029, 141 N.M. 755, 161 P.3d 252 (decided prior to the 2011 recompilation).
Alcoholism. — Where a judge recessed a criminal jury trial for a long holiday weekend; the judge did not return to court on the date set for completion of the trial; the judge told an administrative assistant that the judge was ill, but would be in court in the afternoon; the judge did not return that day and the judge’s staff rescheduled the trial for two days later; on the day the trial was to resume, the judge told the assistant that the judge was hospitalized for heart-related tests; after the trial was twice reset due to the judge’s unavailability, a stipulated mistrial order was entered; the judge was absent for two weeks during which the judge was hospitalized for six days; the judge’s heart ailment and hospitalization were due to alcohol withdrawal; and to justify the judge’s absence, the judge told a reporter that the judge was being treated for and was recovering from a mild heart attack, the judge’s conduct constituted willful misconduct in office. In re Pope, S.Ct. No. 29,778 (June 13, 2007) (decided prior to the 2011 recompilation).
Adoption of procedural rules. — Where a judge implemented the judge’s own rule that precluded any individual from appearing before the judge unless the individual presented photographic identification; a defendant, who appeared ten minutes before the defendant’s trial was refused admittance into the courtroom; the defendant left to obtain a new driver’s license; staff advised the judge that the defendant had arrived, but had left to obtain a new driver’s license to comply with the photo-identification rule; the defendant returned to the courthouse within one hour, but was told that the judge had left and would return the next day; and when the defendant appeared the next day, the defendant was arrested on a bench warrant issued by the judge, the judge’s conduct constituted willful misconduct in office. In re Pineda, S.Ct. No. 29,479 (Filed November 29, 2007) (decided prior to the 2011 recompilation).
Interference in a friend’s criminal case. — Where a judge developed a personal relationship with the defendant in a DUI case, told the presiding judge at the defendant’s bond hearing to make special concessions with regard to the defendant’s bond, talked to the presiding judge at the defendant’s probation violation hearing to influence the disposition of the case, instructed the court clerks to issue a
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clearance of the defendant’s driver’s license, and attempted to influence a police officer when the defendant was stopped for speeding, the judge’s conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (decided prior to the 2011 recompilation).
Drug abuse. — Where a judge knowingly evaded the service of an order of the Judicial Standards Commission to submit to drug testing; the judge did not appear for drug testing for more than seventy-two hours after the judge learned of the commission’s order, refused to submit to the collection of a sample, and ordered the judge’s own tests to obtain results that would be available only to the judge; and when the judge finally submitted to the drug testing as ordered by the commission, the judge tested positive for cocaine, the judge’s conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (decided prior to the 2011 recompilation).
Directing secretary to handle traffic docket. — Where a judge took a vacation knowing that the judge would not return in time to handle the judge’s traffic docket; the judge called the judge’s secretary, told the secretary that the judge’s return had been delayed, and instructed the secretary to handle the judge’s traffic docket; the secretary handled the traffic docket and used the judge’s signature stamp to process the docket; and when the other judges, court personnel, and the media learned about what had occurred, the judge reviewed and signed the cases that the judge’s secretary had handled in the judge’s absence, the judge’s conduct constituted willful misconduct in office. In re Griego, S.Ct. No. 30,203 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Inappropriate behavior on the bench. — Where a judge, who was acting in the judge’s judicial capacity during a juvenile court hearing, raised the judge’s voice with the defense attorney, prevented the attorney from making a full objection for the record, and admonished the attorney in front of the attorney’s client, the judge’s conduct constituted willful misconduct in office. In re Ramirez, 2006-NMSC-021, 139 N.M. 529, 135 P.3d 230 (decided prior to the 2011 recompilation).
Interference in child’s criminal case. — Where the adult child and friends of the child of a district court judge were cited for drinking in public in violation of a municipal ordinance; as the police officers were issuing the citations, the judge identified the judge to one of the officers as the child’s parent by showing the officer the judge’s court identification card and driver’s license; the judge asked the officer if the officer remembered who the judge was; the judge collected all of the citations from the recipients and later instructed the judge’s bailiff to assist the child and the child’s friends in responding to the citations in municipal court; the bailiff prepared and filed written waivers of arraignment and not guilty pleas on municipal court forms; when pretrial conferences were scheduled, the judge contacted a municipal judge who was not the assigned judge to advise the municipal judge that the judge was sending the judge’s child and some of the friends to the municipal judge to change their pleas before the pretrial conference set by the assigned judge was scheduled to occur; and the judge’s child and some of the friends appeared before the municipal judge and pled no contest and received more lenient sentences than the child’s friends who appeared before the assigned municipal judge, the judge’s conduct constituted willful misconduct in office. In re Ramirez, 2006-NMSC-021, 139 N.M. 529, 135 P.3d 230 (decided prior to the 2011 recompilation).
Violation of law. — A judge who pled nolo contendere to charges of DWI, no headlamps and running a stop sign, and who was convicted and sentenced for DWI and no headlamps committed willful misconduct in office. In re Cornish, S.Ct. No. 27,252 (Filed May 6, 2002) (decided prior to the 2011 recompilation).
Issuing insufficient funds checks. — Where a judge, on three separate occasions, issued checks in payment of the judge’s debts knowing at the time the checks were issued that there were insufficient funds in or credit with the bank to pay the checks in full upon presentation, and the judge failed to cooperate with and comply with the rules, requirements, and procedures of the Judicial Standards Commission by failing to file a written response to the commission’s notice of preliminary investigation, the judge’s conduct was willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed May 7, 2001) (decided prior to the 2011 recompilation).
Failure to pay taxes and debts. — Where a judge failed to pay gross receipts taxes for the judge’s
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private business activities for five consecutive years; failed to timely file state personal income tax returns for three consecutive years; used the facilities and equipment of the probate court for the judge’s private business activities; failed to pay the county for copying charges incurred at the county clerks’ office for the judge’s private business and gave the county clerk an insufficient funds check to pay for the copying; and failed to cooperate with and comply with the rules, regulations, and procedures of the Judicial Standards Commission by failing to file a written response to the commission’s notice of preliminary investigation, the judge’s conduct constituted willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed June 13, 2000) (decided prior to the 2011 recompilation).
Harassment and abuse of staff and failure to obey orders of the chief judge. — Where a judge ordered the court administrator to ignore the chief judge’s orders; ordered a deputy sheriff to arrest the administrator for contempt; repeatedly refused to comply with the chief judge’s orders; used profanity and yelled at a deputy sheriff when the deputy sheriff asked for the judge’s daily docket sheet; refused to hear domestic violence cases the judge had agreed to hear to relieve the load on a hearing officer; after being ordered to hear domestic cases by the chief judge, the judge failed to hear all issues and ordered the hearing officer to hear the issues; treated the hearing officer discourteously and disrespectfully; worked very little for a seven-month period; and made inquiries into an adoption case that involved a relative of the chief judge and disclosed confidential information from the file, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Abuse of the prestige of judicial office. — Where a judge had de facto control over a non-profit organization that regularly engaged in proceedings before the judge; the judge personally selected a majority of the board of directors and personally caused the hiring and firing of directors; the judge’s spouse served as executive director of the organization; and the judge allowed the judge’s spouse to use the judge’s chambers and telephone and the judge’s name, title, official stationary, and photograph to be used in solicitation of funds for the organization, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Intentional denial of right to appeal. — Where a judge ruled in favor of the defendant, refused to enter a judgment in the case to prevent the plaintiff from appealing in order to force the plaintiff to settle with the defendant; when the Supreme Court ordered the judge to enter a judgment, the judge expanded the issues litigated in the case; and after being reversed, the judge refused to award costs to the plaintiff, precipitating another appeal, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Delegation of judicial power. — A magistrate court judge who delegated the duty to perform marriages to a municipal clerk, the judge’s actions committed willful misconduct in office. In re Perea, 103 N.M. 617, 711 P.2d 894 (1986) (decided prior to the 2011 recompilation).
Countermanding presiding judge’s orders. — Where, in a case that was assigned to the presiding judge, the presiding judge ordered that a commitment be issued to transport the defendants to the penitentiary upon receipt of the appellant court mandate; while the presiding judge was hearing cases in another district, the judge who was not assigned to the case and who was a friend of the parent of one of the defendants stopped the sheriff from transporting the defendants; without a motion by the counsel for the defendants, notice to the district attorney, or a hearing, the judge prepared an order delaying the transportation; when consulted by the sheriff, the presiding judge ordered the sheriff to proceed with the transportation of the defendants; the judge again stopped the sheriff, served the sheriff with a writ of habeas corpus, and ordered the sheriff to return the defendants to jail; and the presiding judge directed the state police to assist the sheriff with transporting the defendants, the judge’s conduct constituted willful misconduct in office. In re Martinez, 99 N.M. 198, 656 P.2d 861 (1982) (decided prior to the 2011 recompilation).
Denying the district attorney the right to perform statutory duties. — Where the judge issued an order removing the district attorney as juvenile attorney and appointed private attorneys to act as juvenile attorneys with compensation to be paid from the district attorney’s budget, the judge’s conduct constituted willful misconduct in office. In re Martinez, 99 N.M. 198, 656 P. 2d 861 (1982) (decided prior
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to the 2011 recompilation).
21-102. Promoting confidence in the judiciary.
A judge shall act at all times in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of
impropriety.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge.
[2] A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens and must accept the restrictions imposed by the Code and should do so freely and willingly. Examples are the restrictions on judicial speech imposed by Rules 21-401 and 21-402 NMRA that are indispensable to the maintenance of the integrity, impartiality, and independence of the judiciary.
[3] Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary. Because it is not practicable to list all such conduct, the rule is necessarily cast in general terms.
[4] Judges should participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.
[5] Actual improprieties include violations of law, court rules, or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge. The test for appearance of impropriety is a rule of reason that should be applied consistently with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances.
[6] A judge may initiate and participate in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice. In conducting such activities, the judge must act in a manner consistent with this Code.
[7] The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of the law, court rules, or other specific provisions of this Code.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
Threats against a presiding judge. — Where thee criminal cases pending against the defendant were assigned to the same judge; during the pendency of the three cases, the defendant was charged with conspiring to commit an assault with a deadly weapon on the judge; the judge filed a recusal in the
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conspiracy case, but not in the other three pending cases; and there was no showing of bias by the judge against the defendant, the judge did not abuse the judge’s discretion in denying the defendant’s motion requesting the recusal of the judge. State v. Riordan, 2009-NMSC-022, 146 N.M. 281, 209 P.3d 773 (decided prior to the 2011 recompilation).
Denial of recusal not an abuse of discretion. — Where defendant was a child offender under the juvenile system; the court determined that defendant was not amenable to rehabilitation or treatment as a child and sentenced defendant as an adult after defendant pled guilty to second degree murder; prior to being appointed as district judge, the trial judge had been appointed as a contract public defender to represent the victim, who had been murdered by defendant, in a juvenile delinquency proceeding; the judge’s former law partner actually appeared at all the hearings in the victim’s case; and the judge did not personally represent the victim, engage in plea negotiations on the victim’s behalf, discuss a plea with the victim or the victim’s parents, appear before the court on behalf of the victim or the victim’s parents, or have direct contact with the victim in the juvenile proceedings, the judge did not err in denying defendant’s request for recusal. State v. Trujillo, 2009-NMCA-128, 147 N.M. 334, 222 P.3d 1040, cert. quashed, 2010-NMCERT-011, (decided prior to the 2011 recompilation).
Judge’s relatives having ties to the victim. — Recusal of a judge at a murder trial was not required where the judge’s brother-in-law was the attorney representing the victim’s family in a wrongful death action against defendant and the judge’s son was employed as a law clerk by the district attorney. State v. Fero, 105 N.M. 339, 732 P.2d 866 (1987), affirmed, 107 N.M. 369, 758 P.2d 783 (1988) (decided prior to the 2011 recompilation).
Request for findings of fact and conclusions of law. — Because the court had decided in the state’s favor, it was reasonable for the trial court to want to see requested findings of fact and conclusions of law from the plaintiff. Its request for those findings and conclusions did not show a bias or prejudice that would necessitate recusal, despite the defendant’s assertion of an apparent personal interest of the court in ensuring that the state submit its requested findings and conclusions. State ex rel. Taxation & Revenue Dep’t Motor Vehicle Div. v. Van Ruiten, 107 N.M. 536, 760 P.2d 1302 (Ct. App.), cert. denied, 107 N.M. 413, 759 P.2d 200 (1988) (decided prior to the 2011 recompilation).
JUDICIAL REPRIMANDS
Failure to recuse after appearance of impropriety occurs. — Where a district judge developed a romantic relationship with an attorney who had cases pending before the judge; the judge told the attorney that the judge would enter a blanket recusal in the attorney’s cases, but failed to do so; and when the attorney’s cases came before the judge, the judge entered a recusal, made dishonest statements from the bench concerning the judge’s reasons for entering a recusal, and notwithstanding the entry of a recusal, entered rulings in the cases, the judge committed willful misconduct in office. In re Schwartz, 2011-NMSC-019, 149 N.M. 721, 255 P.3d 299 (decided prior to the 2011 recompilation).
Improper demeanor and abuse of contempt power. — Where a judge referred to the presiding judge in a condescending manner to court staff and the court manager; refused to listen to a litigant, raised the judge’s voice, and banged on the bench when the litigant tried to explain why the litigant failed to appear at a pre-trial conference and then held the litigant in direct contempt; and in another case, held a litigant in contempt during a pre-trial conference and then released the contempt order an hour later, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Involvement in the trial of a case pending before the judge. — Where in a DWI trial, the judge stepped off the bench to assist an officer in presenting the officer’s case and in sight and earshot of the jury, told the court manager that the defendant "blew a .3", the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Failure or inability to perform judicial duties. — Where a judge refused to arraign defendants who had
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failed to appear and instead served the defendants with bench warrants when they appeared, failed to properly sentence defendants, was not familiar with sentencing laws, and failed to complete arraignment forms, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Ex parte communications. — Where a judge engaged in ex parte communications with litigants, parties, officers, and bail bondsmen in which the judge told defendants in cases not pending before the judge that the judge would help them out and to ask for the judge when they came to court, which resulted in the judge converting a juvenile bench warrant to an adult bench warrant and dismissing a case, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Napping. — Where a judge took naps during the noon hour in view of the public and court staff and on one occasion, the judge fell asleep while defendants were waiting for paperwork from the judge’s secretary, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Unlawfully claiming per diem expenses. — Where a judge wanted to attend training in another municipality; the judge certified and submitted a travel voucher claiming reimbursement for per diem expenses; the training was cancelled; the judge arranged to pick up the training material in the other municipality, drove to the other municipality, and then drove to another municipality out-of-state; and the judge told the treasurer of the municipality that the training had been cancelled because of bad weather, the judge’s conduct constituted willful misconduct in office. In re Lozano, S.Ct. No. 29,264 (Filed June 8, 2010) (decided prior to the 2011 recompilation).
Improperly touching a party. — Where at a hearing in a case involving a building permit, the judge kept moving the judge’s chair closer to the code enforcement officer and the defendant, kept moving the judge’s hands around, and touched the defendant with the result that the code enforcement officer and the defendant felt uncomfortable and moved away from the judge; and prior to the hearing, the mayor of the municipality had told the judge that the code enforcement officer had filed an EEOC claim against the judge based on improper touching, the judge’s conduct constituted willful misconduct in office. In re Lozano, S.Ct. No. 29,264 (Filed June 8, 2010) (decided prior to the 2011 recompilation).
Warning defendant of imminent arrest. — A judge, who learned that a friend might be arrested for a probation violation, warned the friend that a bail enforcement agent was on the way and might arrest the friend, and told the friend not to get arrested, but to appear in the judge’s court the following day to straighten things out, committed willful misconduct in office. In re Aldaz-Mills, S.Ct. No. 31,197 (Filed May 1, 2009) (decided prior to the 2011 recompilation).
Abusing prestige of judicial office. — Where a municipal judge had private conversations with a contractor about the contractor’s personal financial dispute with landowners who allegedly owed the contractor money for cleaning up the landowners’ property; the judge called the landowners and left a message on the landowners’ answering machine in which the judge identified himself as a judge and stated that the judge was calling about the financial dispute between them and the contractor and that the judge wanted the matter cleared up; the judge subsequently wrote the landowners a letter on municipal stationery, using the judge’s title and court name discussing the contractor’s claim and indicating that a lawsuit would be filed if the contractor was not paid; two weeks later, the judge was assigned to preside over a nuisance action by the municipality concerning the land that the contractor had supposedly cleaned; and the judge accepted the case and issued a summons to the landowners that did not conform with the rules of procedure, the judge’s conduct constituted willful misconduct in office. In re Ramirez, S.Ct. No. 31,664 (Filed June 26, 2009) (decided prior to the 2011 recompilation).
Giving advice to a witness in a case pending before the judge. — Where the judge had an ex parte conversation with the complaining witness in a domestic violence case that was pending before the judge; the witness had been subpoenaed by the state to appear and testify at the witness’ spouse’s trial; the judge advised the witness that if the witness did not want to testify, there would be no adverse consequences; the witness did not appear at the trial; the assistant district attorney informed the judge
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that the district attorney’s office had been informed of the ex parte communication with the witness; the judge began drafting a recusal; when the witness appeared, the judge recalled the case and dismissed it; and the judge subsequently produced a recusal that was different from the document that had been reviewed by the assistant district attorney, the judge’s conduct constituted willful misconduct in office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Making campaign promise to provide assistance if elected. — Where, during the time a judge was a candidate for magistrate court judge, the judge told a landlord that the judge would help if the landlord had a problem in court; when the judge learned that the landlord was having trouble with a tenant, the judge reviewed the lease and advised the landlord to file suit after the judge was elected; the judge also explained how the landlord could excuse the other magistrate court judges to make sure the judge heard the case; after the judge was elected, the landlord filed suit and excused the other magistrate court judges; and at a hearing on the case, the judge became impatient with the landlord and filed a recusal, the judge violated the Code of Judicial Conduct, subjecting the judge to removal from office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Insufficient evidence of willful misconduct in office. — Where a judge called the jail and set bond for a defendant who was the parent of the judge’s friend and who had been arrested for DWI; when no one was available to accept the bond, the judge changed the release order to release the defendant to the custody of the defendant’s spouse and hand-delivered the release order late at night to the jail in another town; the judge presided over the arraignment of the defendant; and the judge filed a recusal when a newspaper reported on the matter, there was no clear and convincing evidence that the judge committed willful misconduct in office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Adjudicating traffic cases for family members and friends. — Where a judge adjudicated more than twenty cases involving family members, friends, and family members of friends and staff, ex parte without hearings or taking evidence; the judge was not the assigned judge and adjudicated the cases before their scheduled arraignment dates, either deferring or continuing the cases with the requirement that no further traffic violations occur within ninety days; and where defendants had failed to appear, the judge cancelled bench warrants and dismissed charges for failure to appear, the judge’s conduct constituted willful misconduct in office. In re Griego, 2008-NMSC-020, 143 N.M. 698,181 P.3d 690 (decided prior to the 2011 recompilation).
Insufficient evidence of willful misconduct. — Where a municipal judge accepted an uncounseled guilty plea and sentenced the defendant; the defendant’s attorney appealed to the district court; in the district court, the municipal attorney made an oral motion to dismiss the appeal and the district court judge allowed the defendant to enter another guilty plea; when the municipal judge received the district court judgment and discovered that a written motion to dismiss had not been filed by the municipal attorney, the municipal judge believed that the municipal attorney and the defendant’s attorney had misrepresented the municipal proceedings to the district court judge; after researching the law of contempt and consulting the Municipal League and the Attorney General’s office, the municipal judge charged the municipal attorney and the defendant’s attorney with contempt; and when the municipal judge reviewed the district court proceedings and discovered that a motion to dismiss had been made, the municipal judge dismissed the contempt charges, the evidence did not clearly and convincingly demonstrate that the municipal judge’s actions constituted willful misconduct in office. In re Locatelli, 2007-NMSC-029, 141 N.M. 755, 161 P.3d 252 (decided prior to the 2011 recompilation).
Interference in a friend’s criminal case. — Where a judge developed a personal relationship with the defendant in a DUI case, told the presiding judge at the defendant’s bond hearing to make special concessions with regard to the defendant’s bond, talked to the presiding judge at the defendant’s probation violation hearing to influence the disposition of the case, instructed the court clerks to issue a clearance of the defendant’s driver’s license, and attempted to influence a police officer when the defendant was stopped for speeding, the judge’s conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (decided prior to the 2011 recompilation).
Drug abuse. — Where a judge knowingly evaded the service of an order of the Judicial Standards
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Commission to submit to drug testing; the judge did not appear for drug testing for more than seventy-two hours after the judge learned of the commission’s order and refused to submit to the collection of a sample, and ordered the judge’s own tests to obtain results that would be available only to the judge; and when the judge finally submitted to the drug testing as ordered by the commission, the judge tested positive for cocaine, the judge’s conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (decided prior to the 2011 recompilation).
Alcoholism. — Where a judge recessed a criminal jury trial for a long holiday weekend; the judge did not return to court on the date set for the completion of the trial; the judge told an administrative assistant that the judge was ill but would be in court in the afternoon; the judge did not return that day and the judge’s staff rescheduled the trial for two days later; on the day the trial was to resume, the judge told the assistant that the judge was hospitalized for heart-related tests; after the trial was twice reset due to the judge’s unavailability, a stipulated mistrial order was entered; the judge was absent for two weeks during which the judge was hospitalized for six days; the judge’s heart ailment and the hospitalization were due to alcohol withdrawal; and to justify the judge’s absence, the judge told a reporter that the judge was being treated for and was recovering from a mild heart attack, the judge’s conduct constituted willful misconduct in office. In re Pope, S.Ct. No. 29,778 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Adoption of procedural rules. — Where a judge implemented the judge’s own rule that precluded any individual from appearing before the judge unless the individual presented photographic identification; a defendant, who appeared ten minutes before the defendant’s trial was refused admittance into the courtroom; the defendant left to obtain a new driver’s license; staff advised the judge that the defendant had arrived, but had left to obtain a new driver’s license to comply with the photo-identification rule; the defendant returned to the courthouse within one hour but was told that the judge had left and would return the next day; and when the defendant appeared the next day, the defendant was arrested on a bench warrant issued by the judge, the judge’s conduct constituted willful misconduct in office. In re Pineda, S.Ct. No. 29,479 (Filed July 31, 2007) (decided prior to the 2011 recompilation).
Directing secretary to handle traffic docket. — Where a judge took a vacation knowing that the judge would not return in time to handle the judge’s traffic docket; the judge called the judge’s secretary, told the secretary that the judge’s return had been delayed, and instructed the secretary to handle the judge’s traffic docket; the secretary handled the traffic docket and used the judge’s signature stamp to process the docket; and when the other judges, court personnel, and the media learned about what had occurred, the judge reviewed and signed the cases that the judge’s secretary had handled in the judge’s absence, the judge’s conduct constituted willful misconduct in office. In re Griego, S.Ct. No. 30,203 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Allowing a friendship relationship to influence judicial conduct — Where a judge was assigned a criminal case in which the defendant was charged with multiple counts of trafficking cocaine and distribution of methamphetamine; during the proceedings, the judge stipulated that the judge knew that by presiding over defendant’s case the judge would not appear to be impartial, because the judge had a personal relationship with the attorney for and fiancé of the defendant who subsequently became the spouse of the defendant; the judge did not recuse from the case; the defendant pled no contest; the pre-sentence report stated that the defendant was a drug dealer and recommended prison sentences; at the sentencing hearing, the judge considered assigning the defendant to a new drug court program in lieu of incarceration; the judge agreed with the chief judge to recuse from the case; at a sentencing hearing before the new judge, the defendant stated that the original judge wanted to revoke the recusal; the new judge recused; and the original judge revoked the recusal and accepted jurisdiction over sentencing, the judge’s conduct constituted willful misconduct in office. In re McBee, 2006-NMSC-024, 138 N.M. 482, 134 P.3d 769 (decided prior to the 2011 recompilation).
Interference in child’s criminal case. — Where the adult child and friends of the child of a district court judge were cited for drinking in public in violation of a municipal ordinance; as the police officers were issuing the citations, the judge identified the judge to one of the officers as the child’s parent by showing the officer the judge’s court identification card and driver’s license; the judge asked the officer if the officer remembered who the judge was; the judge collected all of the citations from the recipients and later
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instructed the judge’s bailiff to assist the child and the child’s friends in responding to the citations in municipal court; the bailiff prepared and filed written waivers of arraignment and not guilty pleas on municipal court forms; when pretrial conferences were scheduled, the judge contacted a municipal judge who was not the assigned judge to advise the municipal judge that the judge was sending the judge’s child and some of the friends to the municipal judge to change their pleas before the pretrial conference set by the assigned judge was scheduled to occur; and the judge’s child and some of the friends appeared before the municipal judge and pled no contest and received more lenient sentences than the child’s friends who appeared before the assigned municipal judge, the judge’s conduct constituted willful misconduct in office. In re Ramirez, 2006-NMSC-021, 139 N.M. 529, 135 P.3d 230 (decided prior to the 2011 recompilation).
Negotiating a plea with defendant’s parent. — Where a judge allowed defendant’s parent to negotiate a plea agreement, failed to notify defendant of court hearings, failed to conduct an arraignment, failed to advise defendant of defendant’s constitutional rights, failed to appoint legal counsel to represent defendant, held court proceedings in the absence of defendant or an attorney for defendant, and signed a judgment and sentence that falsely stated that defendant appeared pro se, pleaded no contest/guilty, and was sentenced, when in fact, defendant was incarcerated and did not do any of those acts, the judge’s conduct constituted willful misconduct in office. In re Martinez, S.Ct. No. 29,180 (Filed May 12, 2005) (decided prior to the 2011 recompilation).
Failure to hear cases, follow rules, and respect judges and court officials. — Where a judge intentionally violated courthouse rules and policies; treated security officers in a hostile, rude, angry, threatening manner; used offensive language toward security officers and court employees; tossed objects, yelled and pounded on a desk when court personnel withheld the judge’s assistant’s paycheck pursuant to court rules and policies; asserted that the assistant was not required to comply with security guidelines and policies and prohibited security personnel from screening the assistant; permitted the assistant to behave in an unprofessional manner and condoned and assisted the assistant in violating and refusing to comply with court policies, being rude to court employees, and complaining about other judges; refused to issue bench warrants during traffic arraignment court week, because the judge did not want the assistant to process the warrants during traffic arraignment dockets and filed recusals in those cases; and waived prior supervised probation costs imposed by statute, the judge committed willful misconduct in office. In re Barnhart, S.Ct. No 29,379 (Filed October 19, 2005) (decided prior to the 2011 recompilation).
Use of judicial position to advance private interest in pending case. — A metropolitan judge who initiated ex parte communications with a special commissioner and a district court judge to influence a child placement in a case involving a family member within the third degree of relationship committed willful misconduct in office. In re Gentry, S.Ct. No. 28,986 (Filed June 29, 2005) (decided prior to the 2011 recompilation).
Outside employment. — A full-time magistrate court judge, who was paid a salary as a full-time magistrate and who served as a tribal judge pro tempore for a tribal court at times when the judge was being paid by the state to serve as a magistrate court judge, committed willful misconduct in office. In re Martinez, S.Ct. 29,309 (Filed October 19, 2005) (decided prior to the 2011 recompilation).
Involvement in a pending criminal case involving the judge’s child. — Where the judge’s child was cited for speeding and no proof of insurance and the judge contacted the sheriff to complain that the child had been mistreated and held for an excessive time by the deputy sheriff at the traffic stop; accessed the court’s file on the child’s case by a private request to the clerk’s office to obtain the file from the presiding judge; called the presiding judge to reschedule the child’s hearing due to car trouble; provided the presiding judge with a memorandum that the district attorney’s office would not appear in the case; and attended hearings with the child where members of the public were present, the judge committed willful misconduct in office. In re Chaparro, S.Ct. No. 27,923 (Filed June 22, 2005) (decided prior to the 2011 recompilation).
Failure to maintain judicial demeanor. — Where, during a bench trial, a judge became agitated with and yelled at the defendant, stood up and hit a gavel on the bench that caused debris, including paper
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clips, to scatter across the room, striking the defendant and the prosecuting officer, the judge’s conduct constituted willful misconduct in office. In re Pindea, S.Ct. No. 29,479 (Filed November 29, 2005) (decided prior to the 2011 recompilation).
Knowingly failing to credit inmates with statutory credit for incarceration. — Where a judge knowingly failed to follow and apply the law when the judge incarcerated citizens for failure to pay fines by crediting inmates with only $5.00 per day of time served toward payment of fines and fees, the judge’s conduct constituted willful misconduct in office. In re Wood, S.Ct. No. 29,085 (Filed May 12, 2005) (decided prior to the 2011 recompilation).
Display of extreme anger. — Where, after the judge declared a mistrial and recused from a criminal trial, the judge came off the bench and yelled at the defendant; defense counsel stood in front of the defendant to block the judge’s access to the defendant; the judge then passed through the swinging gate, turned, and told defense counsel and the defendant that they could write to the Judicial Standards Commission and tell them what the judge thought of the commission; the judge brought the jury back into the courtroom and explained that there had been a mistrial; and the judge apologized to the counsel several times and agreed to recuse in their cases, the conduct of the judge constituted willful misconduct in office. In re Vincent, S.Ct. No. 27,266 (Filed May 19, 2004) (decided prior to the 2011 recompilation).
False statements about judicial disciplinary complaints. — Where, during a radio broadcast debate, a judge made false or misleading statements that no judicial disciplinary complaints had been filed against the judge with the Judicial Standards Commission, the judge committed willful misconduct in office. In re Miller-Byrnes, S.Ct. No. 28,716 (Filed August 31, 2004) (decided prior to the 2011 recompilation).
Personal involvement with trial counsel and harassment of trial counsel. — Where a judge presided over and took judicial action in cases in which the assistant district attorney appeared on behalf of the state during the time the judge was engaged in a personal relationship with the assistant district attorney; the judge failed to inform all counsel or parties of record of the judge’s relationship with the assistant district attorney in cases where the assistant district attorney appeared before the judge; the judge failed to be patient, dignified and courteous to counsel by making inappropriate remarks to assistant district attorneys about the judge’s rulings in front of defendants, defense counsel, and co-counsel; and in one case, the judge suppressed evidence of a breath test, refused to allow the assistant district attorney to call the officer who administered the breath test to testify, and then taunted the assistant district attorney about not being able to prove the state’s case, the judge committed willful misconduct in office. In re Galvan, S.Ct. No. 28,609 (May 17, 2004) (decided prior to the 2011 recompilation).
Maintaining residence outside judicial district. — A municipal judge who failed to maintain a continuous and significant physical presence at a residence within the municipal limits of the municipality as required by municipal ordinance committed willful misconduct in office. In re Gallegos, S.Ct. No. 27,906 (Filed April 15, 2003) (decided prior to the 2011 recompilation).
Causing court employee to be arrested. — Where the judge became embroiled in a controversy with court interpreters; the judge failed to be patient, dignified, and courteous with interpreters, another judge, and the court clerk; the judge issued a warrant for the arrest of a court interpreter on a criminal contempt charge relating to a prior dispute over interpreting services; and the judge had an ex parte communication with another judge about presiding over a pending writ case that involved the judge, which caused the other judge to feel threatened and intimidated and to file a recusal in the case, the judge’s conduct constituted willful misconduct in office. In re Chaparro, S.Ct. No. 27,923 (Filed April 15, 2003) (decided prior to the 2011 recompilation).
Violation of law. — A judge who pled nolo contendere to charges of DWI, no headlamps and running a stop sign, and who was convicted and sentenced for DWI and no headlamps committed willful misconduct in office. In re Cornish, S.Ct. No. 27,252 (Filed May 6, 2002) (decided prior to the 2011 recompilation).
Inappropriate demeanor, interference in pending case, and illegal modification of sentence. —
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Where a judge made inappropriate, age and/or gender-based references to female attorneys who appeared before the judge; after the state lost a six-month rule hearing, the judge threatened the Public Defender’s Office and its employees; the judge told a defendant in a criminal drug case that the defendant was covering up for the defendant’s children and that the defendant could post a property bond with the intention that the state could get rid of the defendant’s house if there were complaints by the defendant’s neighbors; after filing a recusal in a case, the judge became involved in a pretrial conference in the case and testified against a motion filed by the Public Defender’s Office; referred to a female magistrate court judge in an inappropriate, derogatory, and gender-based manner; criticized a female attorney for being employed by the Public Defender’s Office; and after the Public Defender’s Office filed a notice of appeal from the judge’s ruling, the judge verbally modified the sentence and order of eligibility by ex parte communication with the monitoring agent, the judge’s conduct constituted willful misconduct in office. In re Vincent, S.Ct. No. 27,266 (Filed March 22, 2002) (decided prior to the 2011 recompilation).
Abusing prestige of judicial office. — Where a judge directly or indirectly solicited, commanded, requested, induced, employed, or otherwise attempted to promote, facilitate, or obtain favored treatment or avoidance of due process of the law from law enforcement officers for the judge’s friend, the judge committed willful misconduct in office. In re Maestas, S.Ct. No. 27,348 (Filed March 5, 2002) (decided prior to the 2011 recompilation).
Issuing insufficient funds checks. — Where a judge, on three separate occasions, issued checks in payment of the judge’s debts knowing at the time the checks were issued that there were insufficient funds in or credit with the bank to pay the checks in full upon presentation, and the judge failed to cooperate with and comply with the rules, requirements, and procedures of the Judicial Standards Commission by failing to file a written response to the commission’s notice of preliminary investigation, the judge’s conduct was willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed May 7, 2001) (decided prior to the 2011 recompilation).
Involvement in friend’s criminal case. — Where a judge became involved in the pending criminal case of a friend by speaking with the arresting state police officer by cellular telephone during the traffic stop and arrest; personally going to the adult detention center and ordered the friend’s release and taking the friend to the judge’s house, and speaking to a registered nurse and asking the nurse to draw an independent blood sample from the friend; and the judge had an alcoholic drink before going to the jail to release the friend and may have had the odor of alcohol on the judge’s breath, the judge’s conduct constituted willful misconduct in office. In re Sanchez, S.Ct. No. 25,821 (Filed March 14, 2001) (decided before the 2011 recompilation).
Ex parte communications with police officers about pending cases. — A judge who had ex parte communications with police officers concerning defendants’ out-of-court demeanor, attitude or behavior with the officers and about the use of "smiling" and "frowning" faces to be drawn on uniform traffic citations by the officers, which would inform the judge about defendants’ demeanor, attitude or behavior with the officers during traffic stops, the judge committed willful misconduct in office. In re Arnold, S.Ct. No. 26,645 (Filed January 10, 2001) (decided prior to the 2011 recompilation).
Failure to pay taxes and debts. — Where a judge failed to pay gross receipts taxes for the judge’s private business activities for five consecutive years; failed to timely file state personal income tax returns for three consecutive years; used the facilities and equipment of the probate court for the judge’s private business activities; failed to pay the county for copying charges incurred at the county clerks’ office for the judge’s private business, and gave the county clerk an insufficient funds check to pay for the copying; and failed to cooperate and comply with the rules, regulations, and procedures of the Judicial Standards Commission by failing to file a written response to the commission’s notice of preliminary investigation, the judge’s conduct constituted willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed June 13, 2000) (decided prior to the 2011 recompilation).
Failure to comply with the law. — Where a judge approved and agreed in a plea and disposition agreement to withhold from the Motor Vehicle Division an abstract of record upon the defendant’s completion of a probationary period and in another case, failed to impose the mandatory minimum
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sentence required by law, the judge’s conduct constituted willful misconduct in office. In re Sanchez, S.Ct. No. 25,821 (Filed August 17, 1999) (decided prior to the 2011 recompilation).
Failure to perform judicial duties. – Where a magistrate judge delayed in signing and filing written judgments and sentences; failed to impose the mandatory minimum sentences required by law; failed to submit abstracts of record to the Department of Motor Vehicles within the time required by law; and had ex parte communications with the former court administrator of the district court concerning the sentencing and disposition of a defendant who was a relative of the former court administrator and the desire of the defendant’s family that the defendant be ordered to obtain alcohol/drug counseling, the judge’s conduct constituted willful misconduct in office. In re Perea, S.Ct. No. 25,822 (Filed August 17, 1999) (decided prior to the 2011 recompilation).
Harassment and abuse of staff and failure to obey orders of the chief judge. — Where a judge ordered the court administrator to ignore the chief judge’s orders; ordered a deputy sheriff to arrest the administrator for contempt; repeatedly refused to comply with the chief judge’s orders; used profanity and yelled at a deputy sheriff when the deputy sheriff asked for the judge’s daily docket sheet; refused to hear domestic violence cases the judge had agreed to hear to relieve the load on a hearing officer; after being ordered to hear domestic cases by the chief judge, the judge failed to hear all issues and ordered the hearing officer to hear the issues; treated the hearing officer discourteously and disrespectfully; worked very little for a seven-month period; and made inquiries into an adoption case that involved a relative of the chief judge and disclosed confidential information from the file, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Abuse of the prestige of judicial office. — Where a judge had de facto control over a non-profit organization that regularly engaged in proceedings before the judge; the judge personally selected a majority of the board of directors and personally caused the hiring and firing of directors; the judge’s spouse served as executive director of the organization; and the judge allowed the judge’s spouse to use the judge’s chambers and telephone and the judge’s name, title, official stationery, and photograph to be used in solicitation of funds for the organization, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Intentional denial of right to appeal. — Where a judge ruled in favor of the defendant, refused to enter a judgment in the case to prevent the plaintiff from appealing in order to force the plaintiff to settle with the defendant; when the Supreme Court ordered the judge to enter a judgment, the judge expanded the issues litigated in the case; and after being reversed, the judge refused to award costs to the plaintiff, precipitating another appeal, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Director of a DWI school. — Where, as permitted by a municipal ordinance, a municipal judge was the owner and director of a DWI school and had a pecuniary interest in having individuals initially appear before the judge in court and then attend the DWI school, the judge’s conduct violated the Code of Judicial Conduct. In re Rainaldi, 104 N.M. 762, 727 P.2d 70 (1986) (decided prior to the 2011 recompilation).
Delegation of judicial power. — A magistrate court judge who delegated the duty to perform marriages to a municipal clerk committed willful misconduct in office. In re Perea, 103 N.M. 617, 711 P.2d 894 (1986) (decided prior to the 2011 recompilation).
Adjudicating cases in which the judge has a personal interest. — Where a judge filed a criminal complaint for criminal trespass against the defendant who had disregarded the judge’s direction by visiting the premises rented by the judge’s tenant, scheduled an arraignment in the judge’s court, and later filed a recusal in the case; and in a second case, the judge filed a criminal complaint for criminal damage to property against the defendant, who was a former tenant of the judge, arraigned the defendant, committed the defendant to jail, and dismissed the charges without prejudice when the defendant agreed to repair the damages to the premises that the defendant had rented from the judge, the judge’s conduct constituted willful misconduct in office. In re Lucero, 102 N.M. 745, 700 P.2d 648
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(1985) (decided prior to the 2011 recompilation).
Accepting a favor. — Where a judge accepted a favor from a person appearing before the judge, the judge’s conduct violated the Code of Judicial Conduct. In re Terry, 101 N.M. 360, 683 P.2d 42 (1984) (decided prior to the 2011 recompilation).
21-103. Avoiding abuse of the prestige of judicial office.
A judge shall not abuse the prestige of judicial office to advance the personal or economic
interests of the judge or others, or allow others to do so.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] It is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind. For example, it would be improper for a judge to allude to his or her judicial status to gain favorable treatment in encounters with traffic officials. A judge must not use judicial letterhead in conducting his or her personal business.
[2] A judge may provide a reference or recommendation for an individual based on the judge’s personal knowledge. The judge may use official letterhead if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.
[3] Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees and by responding to inquiries from such entities concerning the professional qualifications of a person being considered for judicial office. A judge may write letters of recommendation for any candidate for judicial appointment.
[4] Special considerations arise when judges write or contribute to publications of for-profit entities, whether related or unrelated to the law. A judge should not permit anyone associated with the publication of such materials to exploit the judge’s office in a manner that violates this rule or other applicable law. In contracts for the publication of a judge’s writing, the judge should retain sufficient control over the advertising to avoid such exploitation. A judge who publishes may include the judge’s title and include a biographical statement in the publication.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Unlawfully accepting per diem expenses. — Where the judge wanted to attend training in another municipality; the judge certified and submitted a travel voucher claiming reimbursement for per diem expenses; the training was cancelled; the judge arranged to pick up the training material in the other municipality, drove to the other municipality and then drove to another municipality out-of-state; and the judge told the treasurer of the municipality that the training had been cancelled because of bad weather, the judge’s conduct constituted willful misconduct in office. In re Lozano, S.Ct. No. 29,264 (Filed June 8, 2010) (decided prior to the 2011 recompilation).
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Abuse of the prestige of judicial office. — Where a municipal judge had private conversations with a contractor about the contractor’s personal financial dispute with landowners who allegedly owed the contractor money for cleaning up the landowners’ property; the judge called the landowners and left a message on the landowners’ answering machine in which the judge identified himself as a judge and stated that the judge was calling about the financial dispute between them and the contractor and that the judge wanted the matter cleared up; the judge subsequently wrote the landowners a letter on municipal stationery, using the judge’s title and court name discussing the contractor’s claim and indicating that a lawsuit would be filed if the contractor was not paid; two weeks later, the judge was assigned to preside over a nuisance action by the municipality concerning the land that the contractor had supposedly cleaned; and the judge accepted the case and issued a summons to the landowners that did not conform with the rules of procedure, the judge’s conduct constituted willful misconduct in office. In re Ramirez, S.Ct. No. 31,664 (Filed June 26, 2009) (decided prior to the 2011 recompilation).
Endorsement of political candidate. — Where a magistrate court judge authorized the use of the judge’s name for an endorsement of a candidate for reelection as mayor of a municipality, and the endorsement, which was published in a local newspaper, did not explicitly identify the judge as a magistrate court judge, the judge violated the Code of Judicial Conduct. In re Vincent, 2007-NMSC-056, 143 N.M. 56, 172 P.3d 605 (decided prior to the 2011 recompilation).
Interference in friend’s criminal case. — Where a judge developed a personal relationship with the defendant in a DUI case; the judge told the presiding judge at the defendant’s bond hearing to make special concessions with regard to the defendant’s bond, talked to the presiding judge at the defendant’s probation violation hearing to influence the disposition of the case, instructed the court clerks to issue a clearance of the defendant’s driver’s license, and attempted to influence a police officer when the defendant was stopped for speeding, the judge’s conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (decided prior to the 2011 recompilation).
Interference in child’s criminal case. — Where the adult child and friends of the child of a district court judge were cited for drinking in public in violation of a municipal ordinance; as the police officers were issuing the citations, the judge identified the judge to one of the officers as the child’s parent by showing the officer the judge’s court identification card and driver’s license; the judge asked the officer if the officer remembered who the judge was; the judge collected all of the citations from the recipients and later instructed the judge’s bailiff to assist the child and the child’s friends in responding to the citations in municipal court; the bailiff prepared and filed written waivers of arraignment and not guilty pleas on municipal court forms; when pretrial conferences were scheduled, the judge contacted a municipal judge who was not the assigned judge to advise the municipal judge the judge was sending the judge’s child and some of the friends to the municipal judge to change their pleas before the pretrial conference set by the assigned judge was scheduled to occur; and the judge’s child and some of the friends appeared before the municipal judge and pled no contest and received more lenient sentences than the child’s friends who appeared before the assigned municipal judge, the judge’s conduct constituted willful misconduct in office. In re Ramirez, 2006-NMSC-021, 139 N.M. 529, 135 P.3d 230 (decided prior to the 2011 recompilation).
Use of judicial position to advance private interest in pending case. — A metropolitan court judge who initiated ex parte communications with a special commissioner and a district court judge to influence a child placement in a case involving a family member within the third degree of relationship committed willful misconduct in office. In re Gentry, S.Ct. No. 28,986 (Filed June 29, 2005) (decided prior to the 2011 recompilation).
Involvement in a pending criminal case involving the judge’s child. — Where the judge’s child was cited for speeding and no proof of insurance and the judge contacted the sheriff to complain that the child had been mistreated and held for an excessive time by the deputy sheriff at the traffic stop; accessed the court’s file on the child’s case by a private request to the clerk’s office to obtain the file from the presiding judge; called the presiding judge to reschedule the child’s hearing due to car trouble; provided the presiding judge with a memorandum that the district attorney’s office would not appear in the case; and attended hearings with the child where members of the public were present, the judge committed willful misconduct in office. In re Chaparro, S.Ct. No. 27,923 (Filed June 22, 2005) (decided prior to the 2011
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recompilation).
Abusing prestige of judicial office. — Where a judge directly or indirectly solicited, commanded, requested, induced, employed, or otherwise attempted to promote, facilitate, or obtain favored treatment or avoidance of due process of the law from law enforcement officers for the judge’s friend, the judge committed willful misconduct in office. In re Maestas, S.Ct. No. 27,348 (Filed 5, March 2002) (decided prior to the 2011 recompilation).
Where a judge had de facto control over a non-profit organization that regularly engaged in proceedings before the judge; the judge personally selected the majority of the board of directors and caused the hiring and firing of directors; the judge’s spouse served as executive director of the organization; and the judge allowed the judge’s spouse to use the judge’s chambers and telephone to solicit funds for the organization and the judge’s name, title, official stationery, and photograph to be used in solicitation of funds, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Countermanding presiding judge’s orders. — Where, in a case that was assigned to the presiding judge, the presiding judge ordered that a commitment be issued to transport the defendants to the penitentiary upon receipt of the appellant court mandate; while the presiding judge was hearing cases in another district, the judge who was not assigned to the case and who was a friend of the parent of one of the defendants stopped the sheriff from transporting the defendants; without a motion by the counsel for the defendants, notice to the district attorney, or a hearing, the judge prepared an order delaying the transportation; when consulted by the sheriff, the presiding judge ordered the sheriff to proceed with the transportation of the defendants; the judge again stopped the sheriff, served the sheriff with a writ of habeas corpus, and ordered the sheriff to return the defendants to jail; and the presiding judge directed the state police to assist the sheriff with transporting the defendants, the judge’s conduct constituted willful misconduct in office. In re Martinez, 99 N.M. 198, 656 P.2d 861 (1982) (decided prior to the 2011 recompilation).
Denying district attorney the right to perform statutory duties. — Where the judge issued an order removing the district attorney as juvenile attorney and appointed private attorneys to act as juvenile attorneys with compensation to be paid from the district attorney’s budget, the judge’s conduct constituted willful misconduct in office. In re Martinez, 99 N.M. 198, 656 P. 2d 861 (1982) (decided prior to the 2011 recompilation).
21-200. Canon 2.
A judge shall perform the duties of judicial office impartially, competently, and diligently.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
21-201. Giving precedence to the duties of judicial office.
The duties of judicial office, as prescribed by law, shall take precedence over all of a judge‘s
personal and extrajudicial activities.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities to minimize the risk of conflicts that would result in frequent disqualification. See Canon 3.
[2] Although it is not a duty of judicial office unless prescribed by law, judges are encouraged to participate in activities that promote public understanding of and confidence in the justice system.
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[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Alcoholism. — Where a judge recessed a criminal jury trial for a long holiday weekend; the judge did not return to court on the date set for the completion of the trial; the judge told an administrative assistant that the judge was ill, but would be in court in the afternoon; the judge did not return that day and the judge’s staff rescheduled the trial for two days later; on the day the trial was to resume, the judge told the assistant that the judge was hospitalized for heart-related tests; after the trial was twice reset due to the judge’s unavailability, a stipulated mistrial order was entered; the judge was absent for two weeks during which the judge was hospitalized for six days; the judge’s heart ailment and the hospitalization were due to alcohol withdrawal; and to justify the judge’s absence, the judge told a reporter that the judge was being treated for and was recovering from a mild heart attack, the judge’s conduct constituted willful misconduct in office. In re Pope, S.Ct. No. 29,778 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Directing secretary to handle traffic docket. — Where a judge took a vacation knowing that the judge would not return in time to handle the judge’s traffic docket; the judge called the judge’s secretary, told the secretary that the judge’s return had been delayed, and instructed the secretary to handle the judge’s traffic docket; the secretary handled the traffic docket and used the judge’s signature stamp to process the docket; and when the other judges, court personnel, and the media learned what had occurred, the judge reviewed and signed the cases that the judge’s secretary had handled in the judge’s absence, the judge’s conduct constituted willful misconduct in office. In re Griego, S.Ct. No. 30,203 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Failure to perform judicial duties. — Where a magistrate judge delayed in signing and filing written judgments and sentences, the judge’s conduct constituted willful misconduct in office. In re Perea, S.Ct. No. 25,822 (Filed August 17, 1999) (decided prior to the 2011 recompilation).
Delegation of judicial power. — A magistrate court judge who delegated the duty to perform marriages to a municipal clerk committed willful misconduct in office. In re Perea, 103 N.M. 617, 711 P.2d 894 (1986) (decided prior to the 2011 recompilation).
21-202. Impartiality and fairness.
A judge shall uphold and apply the law and shall perform all duties of judicial office fairly and
impartially.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.
[2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.
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[3] When applying and interpreting the law, a judge sometimes may make good-faith errors of fact or law. Errors of this kind do not violate this rule.
[4] When pro-se litigants appear in court, they should comply with the rules and orders of the court and will not be treated differently from litigants with counsel. It is not a violation of this rule, however, for a judge to make reasonable accommodations to ensure all litigants the opportunity to have their matters fairly heard.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
Judge’s relatives having ties to the victim. — Recusal of a judge at a murder trial was not required where the judge’s brother-in-law was the attorney representing the victim’s family in a wrongful death action against defendant and the judge’s son was employed as a law clerk by the district attorney. State v. Fero, 105 N.M. 339, 732 P.2d 866 (1987), affirmed, 107 N.M. 369, 758 P.2d 783 (1988) (decided prior to the 2011 recompilation).
Impartiality throughout a case is required. — When a judge believes that the judge will be unable to remain impartial, the judge should recuse from the case in order to avoid a hint of impropriety. Gerety v. Demers, 92 N.M. 396, 589 P.2d 180 (1978) (decided prior to the 2011 recompilation).
JUDICIAL REPRIMANDS
Improper demeanor and abuse of contempt power. — Where a judge referred to the presiding judge in a condescending manner to court staff and the court manager; refused to listen to a litigant, raised the judge’s voice, and banged on the bench when the litigant tried to explain why the litigant failed to appear at a pre-trial conference and then held the litigant in direct contempt; and in another case, held a litigant in contempt during a pre-trial conference and then released the contempt order an hour later, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Ex parte communications. — Where a judge engaged in ex parte communications with litigants, parties, officers, and bail bondsmen in which the judge told defendants in cases not pending before the judge that the judge would help them out and to ask for the judge when they came to court, which resulted in the judge converting a juvenile bench warrant to an adult bench warrant and dismissing a case, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Involvement in the trial of a case pending before the judge. — Where in a DWI trial, the judge stepped off the bench to assist an officer in presenting the officer’s case and in sight and earshot of the jury, told the court manager that the defendant "blew a .3", the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Abusing prestige of judicial office. — Where a municipal judge had private conversations with a contractor about the contractor’s personal financial dispute with landowners who allegedly owed the contractor money for cleaning up the landowners’ property; the judge called the landowners and left a message on the landowners’ answering machine in which the judge identified himself as a judge and stated that the judge was calling about the financial dispute between them and the contractor and that the judge wanted the matter cleared up; the judge subsequently wrote the landowners a letter on municipal
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stationery, using the judge’s title and court name discussing the contractor’s claim and indicating that a lawsuit would be filed if the contractor was not paid; two weeks later, the judge was assigned to preside over a nuisance action by the municipality concerning the land that the contractor had supposedly cleaned; and the judge accepted the case and issued a summons to the landowners that did not conform with the rules of procedure, the judge’s conduct constituted willful misconduct in office. In re Ramirez, S.Ct. No. 31,664 (Filed June 26, 2009) (decided prior to the 2011 recompilation).
Giving advice to a witness in a case pending before the judge. — Where the judge had an ex parte conversation with the complaining witness in a domestic violence case that was pending before the judge; the witness had been subpoenaed by the state to appear and testify at the witness’ spouse’s trial; the judge advised the witness that if the witness did not want to testify, there would be no adverse consequences; the witness did not appeal at the trial; the assistant district attorney informed the judge that the district attorney’s office has been informed of the ex parte communication with the witness; the judge began drafting a recusal; when the witness appeared, the judge recalled the case and dismissed it; and the judge subsequently produced a recusal that was different from the document that had been reviewed by the assistant district attorney, the judge’s conduct constituted willful misconduct in office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Making campaign promise to provide assistance if elected. — Where, during the time a judge was a candidate for magistrate court judge, the judge told a landlord that the judge would help if the landlord had a problem in court; when the judge learned that the landlord was having trouble with a tenant, the judge reviewed the lease and advised the landlord to file suit after the judge was elected; the judge also explained how the landlord could excuse the other magistrate court judges to make sure the judge heard the case; after the judge was elected, the landlord filed suit and excused the other magistrate court judges; and at a hearing on the case, the judge became impatient with the landlord and filed a recusal, the judge violated the Code of Judicial Conduct, subjecting the judge to removal from office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Adjudicating traffic cases for family members and friends. — Where a judge adjudicated more than twenty cases involving family members, friends, and family members of friends and staff, ex parte without hearings or taking evidence; the judge was not the assigned judge and adjudicated the cases before their scheduled arraignment dates, either deferring or continuing the cases with the requirement that no further traffic violations occur within ninety days; and where defendants had failed to appear, the judge cancelled bench warrants and dismissed charges for failure to appear, the judge’s conduct constituted willful misconduct in office. In re Griego, 2008-NMSC-020, 143 N.M. 698, 181 P.3d 690 (decided prior to the 2011 recompilation).
Alcoholism. — Where a judge recessed a criminal jury trial for a long holiday weekend; the judge did not return to court on the date set for the completion of the trial; the judge told an administrative assistant that the judge was ill, but would be in court in the afternoon; the judge did not return that day and the judge’s staff rescheduled the trial for two days later; on the day the trial was to resume, the judge told the assistant the judge was hospitalized for heart-related tests; after the trial was twice reset due to the judge’s unavailability, a stipulated mistrial order was entered; the judge was absent for two weeks during which the judge was hospitalized for six days; the judge’s heart ailment and the hospitalization were due to alcohol withdrawal; and to justify the judge’s absence, the judge told a reporter that the judge was being treated for and was recovering from a mild heart attack, the judge’s conduct constituted willful misconduct in office. In re Pope, S.Ct. No. 29,778 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Allowing a relationship to influence judicial conduct. — Where a judge was assigned a criminal case in which the defendant was charged with multiple counts of trafficking cocaine and distribution of methamphetamine; during the proceedings, the judge stipulated that the judge knew that by presiding over defendant’s case the judge would not appear to be impartial, because the judge had a personal relationship with the attorney for and fiancé of the defendant who subsequently became the spouse of the defendant; the judge did not recuse from the case; the defendant pled no contest; the pre-sentence report stated that the defendant was a drug dealer and recommended prison sentences; at the sentencing hearing, the judge considered assigning the defendant to a new drug court program in lieu of
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incarceration; the judge agreed with the chief judge to recuse from the case; at a sentencing hearing before the new judge, the defendant stated that the original judge wanted to revoke the recusal; the new judge recused; and the original judge revoked the recusal and accepted jurisdiction over sentencing. In re McBee, 2006-NMSC-024, 138 N.M. 482, 134 P.3d 769 (decided prior to the 2011 recompilation).
Director of a DWI school. — Where, as permitted by a municipal ordinance, a municipal judge was the owner and director of a DWI school and had a pecuniary interest in having individuals initially appear before the judge in court and then attend the DWI school, the judge’s conduct violated the Code of Judicial Conduct. In re Rainaldi, 104 N.M. 762, 727 P.2d 70 (1986) (decided prior to the 2011 recompilation).
Failure to maintain judicial demeanor. — Where, during a bench trial, a judge became agitated with and yelled at the defendant, stood up and hit a gavel on the bench that caused debris, including paper clips, to scatter across the room, striking the defendant and the prosecuting officer, the judge’s conduct constituted willful misconduct in office. In re Pindea, S.Ct. No. 29,479 (November 29, 2005) (decided prior to the 2011 recompilation).
Involvement in a pending criminal case involving the judge’s child. — Where the judge’s child was cited for speeding and no proof of insurance and the judge contacted the sheriff to complain that the child had been mistreated and held for an excessive time by the deputy sheriff at the traffic stop; accessed the court’s file on the child’s case by a private request to the clerk’s office to obtain the file from the presiding judge; called the presiding judge to reschedule the child’s hearing due to car trouble; provided the presiding judge with a memorandum that the district attorney’s office would not appear in the case; and attended hearings with the child where members of the public were present, the judge committed willful misconduct in office. In re Chaparro, S.Ct. No. 27,923 (Filed June 22, 2005) (decided prior to the 2011 recompilation).
Use of judicial position to advance private interest in pending case. — A metropolitan court judge who initiated ex parte communications with a special commissioner and a district court judge to influence a child placement in a case involving a family member within the third degree of relationship committed willful misconduct in office. In re Gentry, S.Ct. No. 28,986 (Filed June 29, 2005) (decided prior to the 2011 recompilation).
Knowingly failing to credit inmates with statutory credit for incarceration. — Where a judge knowingly failed to follow and apply the law when the judge incarcerated citizens for failure to pay fines by crediting inmates with only $5.00 per day of time served toward payment of fines and fees, the judge’s conduct constituted willful misconduct in office. In re Wood, S.Ct. No. 29,085 (Filed May 12, 2005) (decided prior to the 2011 recompilation).
Display of extreme anger. — Where, after the judge declared a mistrial and recused from a criminal trial, the judge came off the bench and yelled at the defendant; defense counsel stood in front of the defendant to block the judge’s access to the defendant; the judge then passed through the swinging gate, turned, and told defense counsel and the defendant that they could write to the Judicial Standards Commission and tell them what the judge thought of the commission; the judge brought the jury back into the courtroom and explained that there had been a mistrial; and the judge apologized to the counsel several times and agreed to recuse in their cases, the conduct of the judge constituted willful misconduct in office. In re Vincent, S.Ct. No. 27,266 (Filed May 19, 2004) (decided prior to the 2011 recompilation).
Personal involvement with and harassment of trial counsel. — Where a judge presided over and took judicial action in cases in which the assistant district attorney appeared on behalf of the state during the time the judge was engaged in a personal relationship with the assistant district attorney; the judge failed to inform all counsel or parties of record of the judge’s relationship with the assistant district attorney in cases where the assistant district attorney appeared before the judge; the judge failed to be patient, dignified and courteous to counsel by making inappropriate remarks to assistant district attorneys about the judge’s rulings in front of defendants, defense counsel, and co-counsel; and in one case, the judge suppressed evidence of a breath test, refused to allow the assistant district attorney to call the officer who administered the breath test to testify, and then taunted the assistant district attorney about
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not being able to prove the state’s case, the judge committed willful misconduct in office. In re Galvan, S.Ct. No. 28,609 (Filed May 17, 2004) (decided prior to the 2011 recompilation).
Causing court employee to be arrested. — Where the judge became embroiled in a controversy with court interpreters; the judge failed to be patient, dignified, and courteous with interpreters, another judge, and the court clerk; the judge issued a warrant for the arrest of a court interpreter on a criminal contempt charge relating to a prior dispute over interpreting services; and the judge had an ex parte communication with another judge about presiding over a pending writ case which involved the judge which caused the other judge to feel threatened and intimidated and to file a recusal in the case, the judge’s conduct constituted willful misconduct in office. In re Chaparro, S.Ct. No. 27,923 (Filed April 15, 2003) (decided prior to the 2011 recompilation).
Inappropriate demeanor, interference in pending case and illegal modification of sentence. — Where a judge made inappropriate, age and/or gender-based references to female attorneys who appeared before the judge; after the state lost a six-month rule hearing, the judge threatened the Public Defender’s Office and its employees; the judge told a defendant in a criminal drug case that the defendant was covering up for the defendant’s children and that the defendant could post a property bond with the intention that the state could get rid of the defendant’s house if there were complaints by the defendant’s neighbors; after filing a recusal in a case, the judge became involved in a pretrial conference in the case and testified against a motion filed by the Public Defender’s Office; referred to a female magistrate court judge in an inappropriate, derogatory, and gender-based manner; criticized a female attorney for being employed by the Public Defender’s Office; and after the Public Defender’s Office filed a notice of appeal from the judge’s ruling, verbally modified a sentence and order of eligibility by ex parte communication with the monitoring agent, the judge’s conduct constituted willful misconduct in office. In re Vincent, S.Ct. No. 27,266 (Filed March 22, 2002) (decided prior to the 2011 recompilation).
Abusing prestige of judicial office. — Where a judge directly or indirectly solicited, commanded, requested, induced, employed, or otherwise attempted to promote, facilitate, or obtain favored treatment or avoidance of due process of the law from law enforcement officers for the judge’s friend, the judge committed willful misconduct in office. In re Maestas, S.Ct. No. 27,348 (Filed March 5, 2002) (decided prior to the 2011 recompilation).
Involvement in friend’s criminal case. — Where a judge became involved in the pending criminal case of a friend by speaking with the arresting state police officer by cellular telephone during the traffic stop and arrest; personally going to the adult detention center and ordered the friend’s release and taking the friend to the judge’s house, and speaking to a registered nurse and asking the nurse to draw an independent blood sample from the friend; and the judge had an alcoholic drink before going to the jail to release the friend and may have had the odor of alcohol on the judge’s breath, the judge’s conduct constituted willful misconduct in office. In re Sanchez, S.Ct. No. 25,821 (Filed March 14, 2001) (decided before the 2011 recompilation).
Ex parte communications with police officers about pending cases. — A judge who had ex parte communications with police officers concerning defendants’ out-of-court demeanor, attitude or behavior with the officers and about the use of "smiling" and "frowning" faces to be drawn on uniform traffic citations by the officers, which would inform the judge about defendants’ demeanor, attitude or behavior with the officers during traffic stops, the judge committed willful misconduct in office. In re Arnold, S.Ct. No. 26,645 (Filed January 10, 2001) (decided prior to the 2011 recompilation).
Issuing insufficient funds checks. — Where a judge, on three separate occasions, issued checks in payment of the judge’s debts knowing at the time the checks were issued that there were insufficient funds in or credit with the bank to pay the checks in full upon presentation, and the judge failed to cooperate with and comply with the rules, requirements, and procedures of theJudicial Standards Commission by failing to file a written response to the commission’s notice of preliminary investigation, the judge’s conduct was willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed May 7, 2001) (decided prior to the 2011 recompilation).
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Failure to perform judicial duties. — Where a magistrate judge delayed in signing and filing written judgments and sentences; failed to impose the mandatory minimum sentences required by law and failed to submit abstracts of record to the Department of Motor Vehicles within the time required by law, the judge’s conduct constituted willful misconduct in office. In re Perea, S.Ct. No. 25,822 (Filed August 17, 1999) (decided prior to the 2011 recompilation).
Director of a DWI school. — Where, as permitted by a municipal ordinance, a municipal judge was the owner and director of a DWI school and had a pecuniary interest in having individuals initially appear before the judge in court and then attend the DWI school, the judge’s conduct violated the Code of Judicial Conduct. In re Rainaldi, 104 N.M. 762, 727 P.2d 70 (1986) (decided prior to the 2011 recompilation).
21-203. Bias, prejudice, and harassment.
A. A judge shall perform the duties of judicial office, including administrative duties, without
bias or prejudice.
B. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias
or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment
based upon race, religion, color, national origin, ethnicity, ancestry, sex, sexual orientation,
gender identity, marital status, spousal affiliation, socioeconomic status, political affiliation, age,
physical or mental handicap or serious medical condition; and shall not permit court staff, court
officials, or others subject to the judge‘s direction or control to do so.
C. A judge shall require lawyers in proceedings before the court to refrain from manifesting
bias or prejudice, or engaging in harassment, based upon attributes including, but not limited to,
race, religion, color, national origin, ethnicity, ancestry, sex, sexual orientation, gender identity,
marital status, spousal affiliation, socioeconomic status, political affiliation, age, physical or
mental handicap or serious medical condition, against parties, witnesses, lawyers, or others.
D. The restrictions of Paragraphs B and C of this rule do not preclude judges or lawyers from
making legitimate reference to the listed factors, or similar factors, when they are relevant to an
issue in a proceeding.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute.
[2] Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based on stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.
[3] Harassment, as referred to in Paragraphs (B) and (C), is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as race, religion, color, national origin, ethnicity, ancestry, sex, sexual orientation, gender identity, marital status, spousal affiliation, socioeconomic status, political affiliation, age, physical or mental handicap or serious medical condition. Judges are also subject to the New Mexico Judicial Branch harassment policy.
[4] Sexual harassment includes, but is not limited to, sexual advances, requests for sexual favors, and
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other verbal or physical conduct of a sexual nature that is unwelcome.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
Threats against a presiding judge. — Where thee criminal cases pending against the defendant were assigned to the same judge; during the pendency of the three cases, the defendant was charged with conspiring to commit an assault with a deadly weapon on the judge; the judge filed a recusal in the conspiracy case, but not in the other three pending cases; and there was no showing of bias by the judge against the defendant, the judge did not abuse the judge’s discretion in denying the defendant’s motion requesting the recusal of the judge. State v. Riordan, 2009-NMSC-022, 146 N.M. 281, 209 P.3d 773 (decided prior to the 2011 recompilation).
Denial of recusal not an abuse of discretion. — Where defendant was a child offender under the juvenile system; the court determined that defendant was not amenable to rehabilitation or treatment as a child and sentenced defendant as an adult after defendant pled guilty to second degree murder; prior to being appointed as district judge, the trial judge had been appointed as a contract public defender to represent the victim, who had been murdered by defendant, in a juvenile delinquency proceeding; the judge’s former law partner actually appeared at all the hearings in the victim’s case; and the judge did not personally represent the victim, engage in plea negotiations on the victim’s behalf, discuss a plea with the victim or the victim’s parents, appear before the court on behalf of the victim or the victim’s parents, or have direct contact with the victim in the juvenile proceedings, the judge did not err in denying defendant’s request for recusal. State v. Trujillo, 2009-NMCA-128, 147 N.M. 334, 222 P.3d 1040, cert. quashed, 2010-NMCERT-011, (decided prior to the 2011 recompilation).
Judge acting as mediator and as hearing officer to impose sanctions. — Where a district judge appointed another district judge as a mediator to conduct a settlement conference; the mediator judge was subsequently appointed to hear motions for sanctions against one party for alleged bad faith participation in the settlement conference; the mediator judge heard the motions, made findings of fact, concluded that the party had conducted itself in bad faith at the conference, and entered an order requiring the party to pay a sanction; and the appointing district judge independently reviewed the mediator judge’s decision and came to its own independent conclusion regarding sanctions; the appointing judge did not abuse its discretion in appointing the mediator judge to hear the motions for sanctions. Carlsbad Hotel Associates, L.L.C. v. Patterson-UTI Drilling Co., 2009-NMCA-005, 145 N.M. 385, 199 P.3d 288, cert. quashed, 2010-NMCERT-001, (decided prior to the 2011 recompilation).
Recusal not required for prior judicial encounters. — The defendant’s arguments that the trial judge was biased, based on the judge’s previous contempt charges and sanctions or dislike toward the defendant, were without merit, since bias requiring recusal must arise from a personal, extra-judicial source, not a judicial source. Purpura v. Purpura, 115 N.M. 80, 847 P.2d 314 (Ct. App. 1993) (decided prior to the 2011 recompilation).
Request for findings of fact and conclusions of law. — Because the court had decided in the state’s favor, it was reasonable for the trial court to want to see requested findings of fact and conclusions of law from the plaintiff. Its request for those findings and conclusions did not show a bias or prejudice that would necessitate recusal, despite the defendant’s assertion of an apparent personal interest of the court in ensuring that the state submit its requested findings and conclusions. State ex rel. Taxation & Revenue Dep't Motor Vehicle Div. v. Van Ruiten, 107 N.M. 536, 760 P.2d 1302 (Ct. App.), cert. denied, 107 N.M. 413, 759 P.2d 200 (1988) (decided prior to the 2011 recompilation).
Bias or prejudice as grounds for disqualification. — Bias or prejudice towards an attorney on each
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matter raised in the trial court is insufficient to disqualify a judge. This rule, however, is not absolute. If the bias or prejudice toward an attorney is of such a degree as to adversely affect the interest of the client, bias and prejudice toward an attorney is sufficient. Martinez v. Carmona, 95 N.M. 545, 624 P.2d 54 (Ct. App. 1980), cert. quashed, 95 N.M. 593, 624 P.2d 535 (1981) (decided prior to the 2011 recompilation).
When a district judge believes that the judge’s impartiality might reasonably be questioned with reference to bias and prejudice concerning a party, the judge must not exercise the judge’s judicial function. Martinez v. Carmona, 95 N.M. 545, 624 P.2d 54 (Ct. App. 1980), cert. quashed, 95 N.M. 593, 624 P.2d 535 (1981); Klindera v. Worley Mills, Inc., 96 N.M. 743, 634 P.2d 1295 (Ct. App. 1981) (decided prior to the 2011 recompilation).
Comment reflecting feelings about violent crimes after conviction was obtained. — A comment reflecting the judge’s feelings about violent crime once a conviction was obtained did not suggest that the judge had a personal bias or prejudice against defendant during trial. State v. Swafford, 109 N.M. 132, 782 P.2d 385 (Ct. App.), cert. denied, 109 N.M. 54, 781 P.2d 782 (1989) (decided prior to the 2011 recompilation).
Imposition of the maximum sentence. — A claim of judicial bias cannot be based upon the imposition of the maximum legal sentence. State v. Swafford, 109 N.M. 132, 782 P.2d 385 (Ct. App.), cert. denied, 109 N.M. 54, 781 P.2d 782 (1989) (decided prior to the 2011 recompilation).
Judge’s refusal to accept a tendered plea agreement did not demonstrate judicial bias or prejudice, where, when the plea and disposition agreement was tendered, the judge reserved ruling on it until the judge could consider a presentence report, information or treatment programs, and written statements from the victim of the crime and the victim’s sibling regarding their feelings and views on the proposed disposition. State v. Swafford, 109 N.M. 132, 782 P.2d 385 (Ct. App.), cert. denied, 109 N.M. 54, 781 P.2d 782 (1989) (decided prior to the 2011 recompilation).
JUDICIAL REPRIMANDS
Unlawfully accepting per diem expenses. — Where the judge wanted to attend training in another municipality; the judge certified and submitted a travel voucher claiming reimbursement for per diem expenses; the training was cancelled; the judge arranged to pick up the training material in the other municipality, drove to the other municipality and then drove to another municipality out-of-state; and the judge told the treasurer of the municipality that the training had been cancelled because of bad weather, the judge’s conduct constituted willful misconduct in office. In re Lozano, S.Ct. No. 29,264 (Filed June 8, 2010) (decided prior to the 2011 recompilation).
Abusing prestige of judicial office. — Where a municipal judge had private conversations with a contractor about the contractor’s personal financial dispute with landowners who allegedly owed the contractor money for cleaning up the landowners’ property; the judge called the landowners and left a message on the landowners’ answering machine in which the judge identified himself as a judge and stated that the judge was calling about the financial dispute between them and the contractor and that the judge wanted the matter cleared up; the judge subsequently wrote the landowners a letter on municipal stationery, using the judge’s title and court name discussing the contractor’s claim and indicating that a lawsuit would be filed if the contractor was not paid; two weeks later, the judge was assigned to preside over a nuisance action by the municipality concerning the land that the contractor had supposedly cleaned; and the judge accepted the case and issued a summons to the landowners that did not conform with the rules of procedure, the judge’s conduct constituted willful misconduct in office. In re Ramirez, S.Ct. No. 31,664 (Filed June 26, 2009) (decided prior to the 2011 recompilation).
Allowing relationship to influence judicial conduct. — Where a judge was assigned a criminal case in which the defendant was charged with multiple counts of trafficking cocaine and distribution of methamphetamine; during the proceedings, the judge stipulated that the judge knew that by presiding over defendant’s case the judge would not appear to be impartial, because the judge had a personal
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relationship with the attorney for and fiancé of the defendant who subsequently became the spouse of the defendant; the judge did not recuse from the case; the defendant pled no contest; the pre-sentence report stated that the defendant was a drug dealer and recommended prison sentences; at the sentencing hearing, the judge considered assigning the defendant to a new drug court program in lieu of incarceration; the judge agreed with the chief judge to recuse from the case; at a sentencing hearing before the new judge, the defendant stated that the original judge wanted to revoke the recusal; the new judge recused; and the original judge revoked the recusal and accepted jurisdiction over sentencing. In re McBee, 2006-NMSC-024, 138 N.M. 482, 134 P.3d 769 (decided prior to the 2011 recompilation).
Personal involvement with and harassment of trial counsel. — Where a judge presided over and took judicial action in cases in which the assistant district attorney appeared on behalf of the state during the time the judge was engaged in a personal relationship with the assistant district attorney; the judge failed to inform all counsel or parties of record of the judge’s relationship with the assistant district attorney in cases where the assistant district attorney appeared before the judge; the judge failed to be patient, dignified and courteous to counsel by making inappropriate remarks to assistant district attorneys about the judge’s rulings in front of defendants, defense counsel, and co-counsel; and in one case, the judge suppressed evidence of a breath test, refused to allow the assistant district attorney to call the officer who administered the breath test to testify, and then taunted the assistant district attorney about not being able to prove the state’s case, the judge committed willful misconduct in office. In re Galvan, S.Ct. No. 28,609 (Filed May 17, 2004) (decided prior to the 2011 recompilation).
Intentional denial of right to appeal. — Where a judge ruled in favor of the defendant, refused to enter a judgment in the case to prevent the plaintiff from appealing in order to force the plaintiff to settle with the defendant; when the Supreme Court ordered the judge to enter a judgment, the judge expanded the issues litigated in the case; and after being reversed, the judge refused to award costs to the plaintiff, precipitating another appeal, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
21-204. External influences on judicial conduct.
A. A judge shall not be swayed by public opinion or fear of criticism.
B. A judge shall not permit family, social, political, financial, or other interests or
relationships to influence the judge‘s judicial conduct or judgment.
C. A judge shall not convey or permit others to convey the impression that any person or
organization is in a position to influence the judge.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge’s friends and family. Confidence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate outside influences.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
Judge acting as mediator and as hearing officer to impose sanctions. — Where a district judge appointed another district judge as a mediator to conduct a settlement conference; the mediator judge was subsequently appointed to hear motions for sanctions against one party for alleged bad faith
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participation in the settlement conference; the mediator judge heard the motions, made findings of fact, concluded that the party had conducted itself in bad faith at the conference, and entered an order requiring the party to pay a sanction; and the appointing district judge independently reviewed the mediator judge’s decision and came to its own independent conclusion regarding sanctions; the appointing judge did not abuse its discretion in appointing the mediator judge to hear the motions for sanctions. Carlsbad Hotel Associates, L.L.C. v. Patterson-UTI Drilling Co., 2009-NMCA-005, 145 N.M. 385, 199 P.3d 288, cert. quashed, 2010-NMCERT-001, (decided prior to the 2011 recompilation).
Judge’s relatives having ties to the victim. — Recusal of a judge at a murder trial was not required where the judge’s brother-in-law was the attorney representing the victim’s family in a wrongful death action against defendant and the judge’s son was employed as a law clerk by the district attorney. State v. Fero, 105 N.M. 339, 732 P.2d 866 (1987), affirmed, 107 N.M. 369, 758 P.2d 783 (1988) (decided prior to the 2011 recompilation).
JUDICIAL REPRIMANDS
Improperly touching a party. — Where, at a hearing in a case involving a building permit, the judge kept moving the judge’s chair closer to the code enforcement officer and the defendant, kept moving the judge’s hands around, and touched the defendant with the result that the code enforcement officer and the defendant felt uncomfortable and moved away from the judge; and prior to the hearing, the mayor of the municipality had told the judge that the code enforcement officer had filed an EEOC claim against the judge based on improper touching, the judge’s conduct constituted willful misconduct in office. In re Lozano, S.Ct. No. 29,264 (Filed June 8, 2010) (decided prior to the 2011 recompilation).
Making campaign promise to provide assistance if elected. — Where, during the time a judge was a candidate for magistrate court judge, the judge told a landlord that the judge would help if the landlord had a problem in court; when the judge learned that the landlord was having trouble with a tenant, the judge reviewed the lease and advised the landlord to file suit after the judge was elected; the judge also explained how the landlord could excuse the other magistrate court judges to make sure the judge heard the case; after the judge was elected, the landlord filed suit and excused the other magistrate court judges; and at a hearing on the case, the judge became impatient with the landlord and filed a recusal, the judge violated the Code of Judicial Conduct, subjecting the judge to removal from office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Insufficient evidence of willful misconduct in office. — Where a judge called the jail and set bond for a defendant who was the parent of the judge’s friend and who had been arrested for DWI; when no one was available to accept the bond, the judge changed the release order to release the defendant to the custody of the defendant’s spouse and hand-delivered the release order late at night to the jail in another town; the judge presided over the arraignment of the defendant; and the judge filed a recusal when a newspaper reported on the matter, there was no clear and convincing evidence that the judge committed willful misconduct in office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Adjudicating traffic cases for family members and friends. — Where a judge adjudicated more than twenty cases involving family members, friends, and family members of friends and staff, ex parte without hearings or taking evidence; the judge was not the assigned judge and adjudicated the cases before their scheduled arraignment dates, either deferring or continuing the cases with the requirement that no further traffic violations occur within ninety days; and where defendants had failed to appear, the judge cancelled bench warrants and dismissed charges for failure to appear, the judge’s conduct constituted willful misconduct in office. In re Griego, 2008-NMSC-020, 143 N.M. 698, 181 P.3d 690 (decided prior to the 2011 recompilation).
Insufficient evidence of willful misconduct. — Where a municipal judge accepted an uncounseled guilty plea and sentenced the defendant; the defendant’s attorney appealed to the district court; in the district court, the municipal attorney made an oral motion to dismiss the appeal and the district court
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judge allowed the defendant to enter another guilty plea; when the municipal judge received the district court judgment and discovered that a written motion to dismiss had not been filed by the municipal attorney, the municipal judge believed that the municipal attorney and the defendant’s attorney had misrepresented the municipal proceedings to the district court judge; after researching the law of contempt and consulting the Municipal League and the Attorney General’s office, the municipal judge charged the municipal attorney and the defendant’s attorney with contempt; and when the municipal judge reviewed the district court proceedings and discovered that a motion to dismiss had been made, the municipal judge dismissed the contempt charges, the evidence did not clearly and convincingly demonstrate that the municipal judge’s actions constituted willful misconduct in office. In re Locatelli, 2007-NMSC-029, 141 N.M. 755, 161 P.3d 252 (decided prior to the 2011 recompilation).
Interference in friend’s criminal case. — Where a judge developed a personal relationship with the defendant in a DUI case; the judge told the presiding judge at the defendant’s bond hearing to make special concessions with regard to the defendant’s bond, talked to the presiding judge at the defendant’s probation violation hearing to influence the disposition, instructed the court clerks to issue a clearance of the defendant’s driver’s license, and attempted to influence a police officer when the defendant was stopped for speeding, the judge’s conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (decided prior to the 2011 recompilation).
Allowing relationship to influence judicial conduct. — Where a judge was assigned a criminal case in which the defendant was charged with multiple counts of trafficking cocaine and distribution of methamphetamine; during the proceedings, the judge stipulated that the judge knew that by presiding over defendant’s case the judge would not appear to be impartial, because the judge had a personal relationship with the attorney for and fiancé of the defendant who subsequently became the spouse of the defendant; the judge did not recuse from the case; the defendant pled no contest; the pre-sentence report stated that the defendant was a drug dealer and recommended prison sentences; at the sentencing hearing, the judge considered assigning the defendant to a new drug court program in lieu of incarceration; the judge agreed with the chief judge to recuse from the case; at a sentencing hearing before the new judge, the defendant stated that the original judge wanted to revoke the recusal; the new judge recused; and the original judge revoked the recusal and accepted jurisdiction over sentencing, the judge’s conduct constituted willful misconduct in office. In re McBee, 2006-NMSC-024, 138 N.M. 482, 134 P.3d 769 (decided prior to the 2011 recompilation).
Interference in child’s criminal case. — Where the adult child and friends of the child of a district court judge were cited for drinking in public in violation of a municipal ordinance; as the police officers were issuing the citations, the judge identified the judge to one of the officers as the child’s parent by showing the officer the judge’s court identification card and driver’s license; the judge asked the officer if the officer remembered who the judge was; the judge collected all of the citations from the recipients and later instructed the judge’s bailiff to assist the child and the child’s friends in responding to the citations in municipal court; the bailiff prepared and filed written waivers of arraignment and not guilty pleas on municipal court forms; when pretrial conferences were scheduled, the judge contacted a municipal judge who was not the assigned judge to advise the municipal judge the judge was sending the judge’s child and some of the friends to the municipal judge to change their pleas before the pretrial conference set by the assigned judge was scheduled to occur; and the judge’s child and some of the friends appeared before the municipal judge and pled no contest and received more lenient sentences than the child’s friends who appeared before the assigned municipal judge, the judge’s conduct constituted willful misconduct in office. In re Ramirez, 2006-NMSC-021, 139 N.M. 529, 135 P.3d 230 (decided prior to the 2011 recompilation).
Director of a DWI school. — Where, as permitted by a municipal ordinance, a municipal judge was the owner and director of a DWI school and had a pecuniary interest in having individuals initially appear before the judge in court and then attend the DWI school, the judge’s conduct violated the Code of Judicial Conduct. In re Rainaldi, 104 N.M. 762, 727 P.2d 70 (1986) (decided prior to the 2011 recompilation).
Ex parte communications with police officers about pending cases. — A judge who had ex parte communications with police officers concerning defendants’ out-of-court demeanor, attitude or behavior
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with the officers and about the use of "smiling" and "frowning" faces to be drawn on uniform traffic citations by the officers, which would inform the judge about defendants’ demeanor, attitude or behavior with the officers during traffic stops, the judge committed willful misconduct in office. In re Arnold, S.Ct. No. 26,645 (Filed January 10, 2001) (decided prior to the 2011 recompilation).
Failure to pay taxes and debts. — Where a judge failed to pay gross receipts taxes for the judge’s private business activities for five consecutive years; failed to timely file state personal income tax returns for three consecutive years; used the facilities and equipment of the probate court for the judge’s private business activities; failed to pay the county for copying charges incurred at the county clerks’ office for the judge’s private business and gave the county clerk an insufficient funds check to pay for the copying; and failed to cooperate with and comply with the rules, regulations, and procedures of the Judicial Standards Commission by failing to file a written response to the commission’s notice of preliminary investigation, the judge’s conduct constituted willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed June 13, 2000) (decided prior to the 2011 recompilation).
Failure to comply with the law. — Where a judge approved and agreed in a plea and disposition agreement to withhold from the Motor Vehicle Division an abstract of record upon the defendant’s completion of a probationary period and in another case, and failed to impose the mandatory minimum sentence required by law, the judge’s conduct constituted willful misconduct in office. In re Sanchez, S.Ct. No. 25,821 (Filed August 17, 1999) (decided prior to the 2011 recompilation).
Failure to perform judicial duties. — Where a magistrate judge delayed in signing and filing written judgments and sentences; failed to impose the mandatory minimum sentences required by law; failed to submit abstracts of record to the Department of Motor Vehicles within the time required by law; and had ex parte communications with the former court administrator of the district court concerning the sentencing and disposition of a defendant who was a relative of the former court administrator and the desire of the defendant’s family that the defendant be ordered to obtain alcohol/drug counseling, the judge’s conduct constituted willful misconduct in office. In re Perea, S.Ct. No. 25,822 (Filed August 17, 1999) (decided prior to the 2011 recompilation).
Control of an organization that appeared before the judge. — Where a judge had de facto control over a non-profit organization that regularly engaged in proceedings before the judge; the judge personally selected the majority of the board of directors and caused the hiring and firing of directors; the judge’s spouse served as executive director; and the judge allowed the judge’s spouse to use the judge’s chambers and telephone and the judge’s name, title, official stationery, and photograph to be used in solicitation of funds for the organization, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Director of a DWI school. — Where, as permitted by a municipal ordinance, a municipal judge was the owner and director of a DWI school and had a pecuniary interest in having individuals initially appear before the judge in court and then attend the DWI school, the judge’s conduct violated the Code of Judicial Conduct. In re Rainaldi, 104 N.M. 762, 727 P.2d 70 (1986) (decided prior to the 2011 recompilation).
Delegation of judicial power. — A magistrate court judge who delegated the duty to perform marriages to a municipal clerk committed willful misconduct in office. In re Perea, 103 N.M. 617, 711 P.2d 894 (1986) (decided prior to the 2011 recompilation).
21-205. Competence, diligence, and cooperation.
A. A judge shall perform judicial and administrative duties competently and diligently.
B. A judge shall cooperate with other judges and court officials in the administration of court
business.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
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Committee commentary. —
[1] Competence in the performance of judicial duties requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform a judge’s responsibilities of judicial office. Judges should make diligent effort to maintain knowledge of current developments in the law through ongoing education.
[2] A judge should seek the necessary docket time, court staff, expertise, and resources to discharge all adjudicative and administrative responsibilities.
[3] Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to take reasonable measures to ensure that court officials, litigants, and their lawyers cooperate with the judge to that end. The business of the court is a full-time demand. A judge’s extrajudicial activities should not unreasonably interfere with the administration of justice and the timely performance of judicial duties.
[4] In disposing of matters promptly and efficiently, a judge must demonstrate due regard for the rights of parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor or supervise cases in ways that reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Failure or inability to perform judicial duties. — Where a judge refused to arraign defendants who had failed to appear and instead served the defendants with bench warrants when they appeared, failed to properly sentence defendants, was not familiar with sentencing laws, and failed to complete arraignment forms, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Abusing prestige of judicial office. — Where a municipal court judge had private conversations with a contractor about the contractor’s personal financial dispute with landowners who allegedly owned the contractor money for cleaning up the landowners’ property; the judge called the landowners and left a message on the landowners’ answering machine in which the judge identified himself as a judge and stated that the judge was calling about the financial dispute between them and the contractor and that the judge wanted the matter cleared up; the judge subsequently wrote the landowners a letter on municipal stationery, using the judge’s title and court name discussing the contractor’s claim and indicating that a lawsuit would be filed if the contractor was not paid; two weeks later, the judge was assigned to preside over a nuisance action by the municipality concerning the land that the contractor had supposedly cleaned; and the judge accepted the case and issued a summons to the landowners that did not conform with the rules of procedure, the judge’s conduct constituted willful misconduct in office. In re Ramirez, S.Ct. No. 31,664 (Filed June 29, 2009) (decided prior to the 2011 recompilation).
Giving advice to a witness in a case pending before the judge. — Where the judge had an ex parte conversation with the complaining witness in a domestic violence case that was pending before the judge; the witness had been subpoenaed by the state to appear and testify at the witness’ spouse’s trial; the judge advised the witness that if the witness did not want to testify, there would be no adverse
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consequences; the witness did not appeal at the trial; the assistant district attorney informed the judge that the district attorney’s office has been informed of the ex parte communication with the witness; the judge began drafting a recusal; when the witness appeared, the judge recalled the case and dismissed it; and the judge subsequently produced a recusal that was different from the document that had been reviewed by the assistant district attorney, the judge’s conduct constituted willful misconduct in office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Adjudicating traffic cases for family members and friends. — Where a judge adjudicated more than twenty cases involving family members, friends, and family members of friends and staff, ex parte without hearings or taking evidence; the judge was not the assigned judge and adjudicated the cases before their scheduled arraignment dates, either deferring or continuing the cases with the requirement that no further traffic violations occur within ninety days; and where defendants had failed to appear, the judge cancelled bench warrants and dismissed charges for failure to appear, the judge’s conduct constituted willful misconduct in office. In re Griego, 2008-NMSC-020, 143 N.M. 698, 181 P.3d 690 (decided prior to the 2011 recompilation).
Alcoholism. — Where a judge recessed a criminal jury trial for a long holiday weekend; the judge did not return to court on the date set for the completion of the trial; the judge told an administrative assistant that the judge was ill, but would be in court in the afternoon; the judge did not return that day and the judge’s staff rescheduled the trial for two days later; on the day the trial was to resume, the judge told the assistant that the judge was hospitalized for heart-related tests; after the trial was twice reset due to the judge’s unavailability, a stipulated mistrial order was entered; the judge was absent for two weeks during which the judge was hospitalized for six days; the judge’s heart ailment and the hospitalization were due to alcohol withdrawal; and to justify the judge’s absence, the judge told a reporter that the judge was being treated for and was recovering from a mild heart attack, the judge’s conduct constituted willful misconduct in office. In re Pope, S.Ct. No. 29,778 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Adoption of procedural rules. — Where a judge implemented the judge’s own rule that precluded any individual from appearing before the judge unless the individual presented photographic identification; a defendant, who appeared ten minutes before the defendant’s trial was refused admittance into the courtroom; the defendant left to obtain a new driver’s license; staff advised the judge that the defendant had arrived, but had left to obtain a new driver’s license to comply with the photo-identification rule; the defendant returned to the courthouse within one hour, but was told that the judge had left and would return the next day; and when the defendant appeared the next day, the defendant was arrested on a bench warrant issued by the judge, the judge’s conduct constituted willful misconduct in office. In re Pineda, S.Ct. No. 29,479 (Filed July 31, 2007) (decided prior to the 2011 recompilation).
Failure to hear cases, follow rules and respect judges and court officials. — Where a judge intentionally violated courthouse rules and policies; treated security officers in a hostile, rude, angry, threatening manner; used offensive language toward security officers and court employees; tossed objects, yelled and pounded on a desk when court personnel withheld the judge’s assistant’s paycheck pursuant to court rules and policies; asserted that the assistant was not required to comply with security guidelines and policies and prohibited security personnel from screening the assistant; permitted the assistant to behave in an unprofessional manner and condoned and assisted the assistant in violating and refusing to comply with court policies, being rude to court employees, and complaining about other judges refused to issue bench warrants during traffic arraignment court week because the judge did not want the assistant to process the warrants during traffic arraignment dockets and filed recusals in those cases; and waived prior supervised probation costs imposed by statute, the judge committed willful misconduct in office. In re Barnhart, S.Ct. No 29,379 (Filed October 19, 2005) (decided prior to the 2011 recompilation).
Allowing a friendship relationship to influence judicial conduct. — Where a judge was assigned a criminal case in which the defendant was charged with multiple counts of trafficking cocaine and distribution of methamphetamine; during the proceedings, the judge stipulated that the judge knew that by presiding over defendant’s case the judge would not appear to be impartial, because the judge had a personal relationship with the attorney for and fiance of the defendant who subsequently became the
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spouse of the defendant; the judge did not recuse from the case; the defendant pled no contest; the pre-sentence report stated that the defendant was a drug dealer and recommended prison sentences; at the sentencing hearing, the judge considered assigning the defendant to a new drug court program in lieu of incarceration; the judge agreed with the chief judge to recuse from the case; at a sentencing hearing before the new judge, the defendant stated that the original judge wanted to revoke the recusal; the new judge recused; and the original judge revoked the recusal and accepted jurisdiction over sentencing, the judge’s conduct constituted willful misconduct in office. In re McBee, 2006-NMSC-024, 138 N.M. 482, 134 P.3d 769 (decided prior to the 2011 recompilation).
Knowingly failing to credit inmates with statutory credit for incarceration. — Where a judge knowingly failed to follow and apply the law when the judge incarcerated citizens for failure to pay fines by crediting inmates with only $5.00 per day of time served toward payment of fines and fees, the judge’s conduct constituted willful misconduct in office. In re Wood, S.Ct. No. 29,085 (Filed May 12, 2005) (decided prior to the 2011 recompilation).
Display of extreme anger. — Where, after the judge declared a mistrial and recused from a criminal trial, the judge came off the bench and yelled at the defendant; defense counsel stood in front of the defendant to block the judge’s access to the defendant; the judge then passed through the swinging gate, turned, and told defense counsel and the defendant that they could write to the Judicial Standards Commission and tell them what the judge thought of the commission; and the judge brought the jury back into the courtroom and explained that there had been a mistrial; and the judge apologized to the counsel several times and agreed to recuse in their cases, the conduct of the judge constituted willful misconduct in office. In re Vincent, S.Ct. No. 27,266 (Filed May 19, 2004) (decided prior to the 2011 recompilation).
Inappropriate demeanor, interference in pending case and illegal modification of sentence. — Where a judge made inappropriate, age and/or gender-based references to female attorneys who appeared before the judge; after the state lost a six-month rule hearing, the judge threatened the Public Defender’s Office and its employees; the judge told a defendant in a criminal drug case that the defendant was covering up for the defendant’s children and that the defendant could post a property bond with the intention that the state could get rid of the defendant’s house if there were complaints by the defendant’s neighbors; after filing a recusal in a case, the judge became involved in a pretrial conference in the case and testified against a motion filed by the Public Defender’s Office; referred to a female magistrate court judge in an inappropriate, derogatory, and gender-based manner; criticized a female attorney for being employed by the Public Defender’s Office; and after the Public Defender’s Office filed a notice of appeal from the judge’s ruling, verbally modified a sentence and order of eligibility by ex parte communication with the monitoring agent, the judge’s conduct constituted willful misconduct in office. In re Vincent, S.Ct. No. 27,266 (Filed March 22, 2002) (decided prior to the 2011 recompilation).
Issuing insufficient funds checks. — Where a judge, on three separate occasions, issued checks in payment of the judge’s debts knowing at the time the checks were issued that there were insufficient funds in or credit with the bank to pay the checks in full upon presentation and the judge failed to cooperate and comply with the rules, requirements and procedures of the Judicial Standards Commission by failing to file a written response to the commission’s notice of preliminary investigation, the judge’s conduct was willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed May 7, 2001) (decided prior to the 2011 recompilation).
Failure to comply with the law. — Where a judge approved and agreed in a plea and disposition agreement to withhold from the Motor Vehicle Division an abstract of record upon the defendant’s completion of a probationary period and in another case, failed to impose the mandatory minimum sentence required by law, the judge’s conduct constituted willful misconduct in office. In re Sanchez, S.Ct. No. 25,821 (Filed August 17, 1999) (decided prior to the 2011 recompilation).
Failure to perform judicial duties. — Where a magistrate judge delayed in signing and filing written judgments and sentences; failed to impose the mandatory minimum sentences required by law and failed to submit abstracts of record to the Department of Motor Vehicles within the time required by law, the judge’s conduct constituted willful misconduct in office. In re Perea, S.Ct. No. 25,822 (August 17, 1999)
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(decided prior to the 2011 recompilation).
Harassment and abuse of staff and failure to obey orders of the chief judge. — Where a judge ordered the court administrator to ignore the chief judge’s orders; ordered a deputy sheriff to arrest the administrator for contempt; repeatedly refused to comply with the chief judge’s orders; used profanity and yelled at a deputy sheriff when the deputy sheriff asked for the judge’s daily docket sheet; refused to hear domestic violence cases the judge had agreed to hear to relieve the load on a hearing officer; after being ordered to hear domestic cases by the chief judge, the judge failed to hear all issues and ordered the hearing officer to hear the issues; treated the hearing officer discourteously and disrespectfully; worked very little for a seven-month period; and made inquiries into an adoption case that involved a relative of the chief judge and disclosed confidential information from the file, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Intentional denial of right to appeal. — Where a judge ruled in favor of the defendant, refused to enter a judgment in the case to prevent the plaintiff from appealing in order to force the plaintiff to settle with the defendant; when the Supreme Court ordered the judge to enter a judgment, the judge expanded the issues litigated in the case; and after being reversed, the judge refused to award costs to the plaintiff, precipitating another appeal, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Countermanding presiding judge’s orders. — Where, in a case that was assigned to the presiding judge, the presiding judge ordered that a commitment be issued to transport the defendants to the penitentiary upon receipt of the appellant court mandate; while the presiding judge was hearing cases in another district, the judge who was not assigned to the case and who was a friend of the parent of one of the defendants stopped the sheriff from transporting the defendants; without a motion by the counsel for the defendants, notice to the district attorney or a hearing, the judge prepared an order delaying the transportation; when consulted by the sheriff, the presiding judge ordered the sheriff to proceed with the transportation of the defendants; the judge again stopped the sheriff, served the sheriff with a writ of habeas corpus, and ordered the sheriff to return the defendants to jail; and the presiding judge directed the state police to assist the sheriff with transporting the defendants, the judge’s conduct constituted willful misconduct in office. In re Martinez, 99 N.M. 198, 656 P.2d 861 (1982) (decided prior to the 2011 recompilation).
21-206. Ensuring the right to be heard.
A. A judge shall accord to every person who has a legal interest in a proceeding, or that
person‘s lawyer, the right to be heard according to law.
B. A judge may encourage parties to a proceeding and their lawyers to settle matters in
dispute but shall not act in a manner that coerces any party into settlement.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] The right to be heard is an essential component of a fair and impartial system of justice. Substantive rights of litigants can be protected only if procedures protecting the right to be heard are observed.
[2] The judge should be careful that efforts to further settlement do not undermine any party’s right to be heard according to law. The judge should keep in mind the effect that the judge’s participation in settlement discussions may have, not only on the judge’s own views of the case, but also on the perceptions of the lawyers and the parties if the case remains with the judge after settlement efforts are unsuccessful.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
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Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
Establishing record of impropriety. — It is improper for a trial judge to refuse defense counsel an opportunity to establish on the record defense counsel’s objections to comments defense counsel claimed the trial judge had made during a recess. State v. Martin, 101 N.M. 595, 686 P.2d 937 (1984) (decided prior to the 2011 recompilation).
JUDICIAL REPRIMANDS
Improper demeanor and abuse of contempt power. — Where a judge referred to the presiding judge in a condescending matter to court staff and the court manager; refused to listen to a litigant, raised the judge’s voice, and banged on the bench when the litigant tried to explain why the litigant failed to appear at a pre-trial conference and then held the litigant in direct contempt; and in another case, held a litigant in contempt during a pre-trial conference and then released the contempt order an hour later, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Ex parte communications. — Where a judge engaged in ex parte communications with litigants, parties, officers and bail bondsmen in which the judge told defendants in cases not pending before the judge that the judge would help them out and to ask for the judge when they came to court, which resulted in the judge converting a juvenile bench warrant to an adult bench warrant and dismissing a case, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Napping. — Where a judge took naps during the noon hour in view of the public and court staff and on one occasion, the judge fell asleep while defendants were waiting for paperwork from the judge’s secretary, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Involvement in the trial of a case pending before the judge. — Where in a DWI trial, the judge stepped off the bench to assist an officer in presenting the officer’s case and in sight and earshot of the jury, told the court manager that the defendant "blew a .3", the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Alcoholism. — Where a judge recessed a criminal jury trial for a long holiday weekend; the judge did not return to court on the date set for the completion of the trial; the judge told an administrative assistant that the judge was ill, but would be in court in the afternoon; the judge did not return that day and the judge’s staff rescheduled the trial for two days later; on the day the trial was to resume, the judge told the assistant that the judge was hospitalized for heart-related tests; after the trial was twice reset due to the judge’s unavailability, a stipulated mistrial order was entered; the judge was absent for two weeks during which the judge was hospitalized for six days; the judge’s heart ailment and the hospitalization were due to alcohol withdrawal; and to justify the judge’s absence, the judge told a reporter that the judge was being treated for and was recovering from a mild heart attack, the judge’s conduct constituted willful misconduct in office. In re Pope, S.Ct. No. 29,778 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Adoption of procedural rules. — Where a judge implemented the judge’s own rule that precluded any individual from appearing before the judge unless the individual presented photographic identification; a defendant, who appeared ten minutes before the defendant’s trial was refused admittance into the
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courtroom; the defendant left to obtain a new driver’s license; staff advised the judge that the defendant had arrived, but had left to obtain a new driver’s license to comply with the photo-identification rule; the defendant returned to the courthouse within one hour, but was told that the judge had left and would return the next day; and when the defendant appeared the next day, the defendant was arrested on a bench warrant issued by the judge, the judge’s conduct constituted willful misconduct in office. In re Pineda, S.Ct. No. 29,479 (Filed July 31, 2007) (decided prior to the 2011 recompilation).
Interference in a friend’s criminal case. — Where a judge developed a personal relationship with the defendant in a DUI case; the judge told the presiding judge at the defendant’s bond hearing to make special concessions with regard to the defendant’s bond, talked to the presiding judge at the defendant’s probation violation hearing to influence the disposition, instructed the court clerks to issue a clearance of the defendant’s driver’s license, and attempted to influence a police officer when the defendant was stopped for speeding, the judge’s conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (decided prior to the 2011 recompilation).
Directing secretary to handle traffic docket. — Where a judge took a vacation knowing that the judge would not return in time to handle the judge’s traffic docket; the judge called the judge’s secretary, told the secretary that the judge’s return had been delayed, and instructed the secretary to handle the judge’s traffic docket; the secretary handled the traffic docket and used the judge’s signature stamp to process the docket; and when the other judges, court personnel, and the media learned about what had occurred, the judge reviewed and signed the cases that the judge’s secretary had handled in the judge’s absence, the judge’s conduct constituted willful misconduct in office. In re Griego, S.Ct. No. 30,203 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Director of a DWI school. — Where, as permitted by a municipal ordinance, a municipal judge was the owner and director of a DWI school and had a pecuniary interest in having individuals initially appear before the judge in court and then attend the DWI school, the judge’s conduct violated the Code of Judicial Conduct. In re Rainaldi, 104 N.M. 762, 727 P.2d 70 (1986) (decided prior to the 2011 recompilation).
Intentional denial of right to appeal. — Where a judge ruled in favor of the defendant, refused to enter a judgment in the case to prevent the plaintiff from appealing in order to force the plaintiff to settle with the defendant; when the Supreme Court ordered the judge to enter a judgment, the judge expanded the issues litigated in the case; and after being reversed, the judge refused to award costs to the plaintiff, precipitating another appeal, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
21-207. Responsibility to hear and decide.
A judge shall hear and decide matters assigned to the judge, except when disqualification is
required by Rule 21-211 NMRA, the constitution, or other law.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] Judges must be available to decide the matters that come before the court. Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule
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numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Failure or inability to perform judicial duties. — Where a judge refused to arraign defendants who had failed to appear and instead served the defendants with bench warrants when they appeared, failed to properly sentence defendants, was not familiar with sentencing laws; and failed to complete arraignment forms, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Failure to perform judicial duties. — Where a magistrate judge delayed in signing and filing written judgments and sentences and failed to submit abstracts of record to the Department of Motor Vehicles within the time required by law, the judge’s conduct constituted willful misconduct in office. In re Perea, S.Ct. No. 25,822 (Filed August 17, 1999) (decided prior to the 2011 recompilation).
Delegation of judicial power. — A magistrate court judge who delegated the duty to perform marriages to a municipal clerk committed willful misconduct in office. In re Perea, 103 N.M. 617, 711 P.2d 894 (1986) (decided prior to the 2011 recompilation).
Alcoholism. — Where a judge recessed a criminal jury trial for a long holiday weekend; the judge did not return to court on the date set for the completion of the trial; the judge told an administrative assistant that the judge was ill, but would be in court in the afternoon; the judge did not return that day and the judge’s staff rescheduled the trial for two days later; on the day the trial was to resume, the judge told the assistant that the judge was hospitalized for heart-related tests; after the trial was twice reset due to the judge’s unavailability, a stipulated mistrial order was entered; the judge was absent for two weeks during which the judge was hospitalized for six days; the judge’s heart ailment and the hospitalization were due to alcohol withdrawal; and to justify the judge’s absence, the judge told a reporter that the judge was being treated for and was recovering from a mild heart attack, the judge’s conduct constituted willful misconduct in office. In re Pope, S.Ct. No. 29,778 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Directing secretary to handle traffic docket. — Where a judge took a vacation knowing that the judge would not return in time to handle the judge’s traffic docket; the judge called the judge’s secretary, told the secretary that the judge’s return had been delayed, and instructed the secretary to handle the judge’s traffic docket; the secretary handled the traffic docket and used the judge’s signature stamp to process the docket; and when the other judges, court personnel, and the media learned about what had occurred, the judge reviewed and signed the cases that the judge’s secretary had handled in the judge’s absence, the judge’s conduct constituted willful misconduct in office. In re Griego, S.Ct. No. 30,203 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Failure to hear cases, follow rules and respect judges and court officials. — Where a judge intentionally violated courthouse rules and policies; treated security officers in a hostile, rude, angry, threatening manner; used offensive language toward security officers and court employees; tossed objects, yelled and pounded on a desk when court personnel withheld the judge’s assistant’s paycheck pursuant to court rules and policies; asserted that the assistant was not required to comply with security guidelines and policies and prohibited security personnel from screening the assistant; permitted the assistant to behave in an unprofessional manner and condoned and assisted the assistant in violating and refusing to comply with court policies, being rude to court employees, and complaining about other judges; refused to issue bench warrants during traffic arraignment court week, because the judge did not want the assistant to process the warrants during traffic arraignment dockets and filed recusals in those cases; and waived prior supervised probation costs imposed by statute, the judge committed willful misconduct in office. In re Barnhart, S.Ct. No 29,379 (Filed October 19, 2005) (decided prior to the 2011
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recompilation).
21-208. Decorum, demeanor, and communication with jurors.
A. A judge shall require order and decorum in proceedings before the court.
B. A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers,
court staff, court officials, and others with whom the judge deals in an official capacity and shall
require similar conduct of lawyers, court staff, court officials, and others subject to the judge‘s
direction and control.
C. A judge shall not commend or criticize jurors for their verdict other than in a court order or
opinion in a proceeding, but may express appreciation to jurors for their service to the judicial
system and the community.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] The duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 21-205 NMRA to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.
[2] Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror’s ability to be fair and impartial in a subsequent case.
[3] A judge who is not otherwise prohibited by law from doing so may meet with jurors who choose to remain after trial but should be careful not to discuss the merits of the case.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Improperly touching a party. — Where, at a hearing in a case involving a building permit, the judge kept moving the judge’s chair closer to the code enforcement officer and the defendant, kept moving the judge’s hands around, and touched the defendant with the result that the code enforcement officer and the defendant felt uncomfortable and moved away from the judge; and prior to the hearing, the mayor of the municipality had told the judge that the code enforcement officer had filed an EEOC claim against the judge based on improper touching, the judge’s conduct constituted willful misconduct in office. In re Lozano, S.Ct. No. 29,264 (Filed June 8, 2010) (decided prior to the 2011 recompilation).
Improper demeanor and abuse of contempt power. — Where a judge referred to the presiding judge in a condescending matter to court staff and the court manager; refused to listen to a litigant, raised the judge’s voice, and banged on the bench when the litigant tried to explain why the litigant failed to appear at a pre-trial conference and then held the litigant in direct contempt; and in another case, held a litigant in contempt during a pre-trial conference and then released the contempt order an hour later, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
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Napping. — Where a judge took naps during the noon hour in view of the public and court staff and on one occasion, the judge fell asleep while defendants were waiting for paperwork from the judge’s secretary, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Director of a DWI school. — Where, as permitted by a municipal ordinance, a municipal judge was the owner and director of a DWI school and had a pecuniary interest in having individuals initially appear before the judge in court and then attend the DWI school, the judge’s conduct violated the Code of Judicial Conduct. In re Rainaldi, 104 N.M. 762, 727 P.2d 70 (1986) (decided prior to the 2011 recompilation).
Failure to hear cases, follow rules and respect judges and court officials. — Where a judge intentionally violated courthouse rules and policies; treated security officers in a hostile, rude, angry, threatening manner; used offensive language toward security officers and court employees; tossed objects, yelled and pounded on a desk when court personnel withheld the judge’s assistant’s paycheck pursuant to court rules and policies; asserted that the assistant was not required to comply with security guidelines and policies and prohibited security personnel from screening the assistant; permitted the assistant to behave in an unprofessional manner and condoned and assisted the assistant in violating and refusing to comply with court policies, being rude to court employees, and complaining about other judges; refused to issue bench warrants during traffic arraignment court week, because the judge did not want the assistant to process the warrants during traffic arraignment dockets and filed recusals in those cases; and waived prior supervised probation costs imposed by statute, the judge committed willful misconduct in office. In re Barnhart, S.Ct. No 29,379 (Filed October 19, 2005) (decided prior to the 2011 recompilation).
Failure to maintain judicial demeanor. — Where, during a bench trial, a judge became agitated with and yelled at the defendant, stood up and hit a gavel on the bench that caused debris, including paper clips, to scatter across the room, striking the defendant and the prosecuting officer, the judge’s conduct constituted willful misconduct in office. In re Pindea, S.Ct. No. 29,479 (Filed November 29, 2005) (decided prior to the 2011 recompilation).
Personal involvement with trial counsel and harassment of trial counsel. — Where a judge presided over and took judicial action in cases in which the assistant district attorney appeared on behalf of the state during the time the judge was engaged in a personal relationship with the assistant district attorney; the judge failed to inform all counsel or parties of record of the judge’s relationship with the assistant district attorney in cases where the assistant district attorney appeared before the judge; the judge failed to be patient, dignified and courteous to counsel by making inappropriate remarks to assistant district attorneys about the judge’s rulings in front of defendants, defense counsel, and co-counsel; and in one case, the judge suppressed evidence of a breath test, refused to allow the assistant district attorney to call the officer who administered the breath test to testify, and then taunted the assistant district attorney about not being able to prove the state’s case, the judge committed willful misconduct in office. In re Galvan, S.Ct. No. 28,609 (Filed May 17, 2004) (decided prior to the 2011 recompilation).
Failure to maintain judicial demeanor was not willful misconduct. — Where a defendant’s parent posted a cash bond to obtain the release of the defendant; the judge had not set bail; when the parent inquired of the judge about obtaining the return of the cash bond, the judge acted in a rude and angry manner and informed the judge’s secretary to forfeit the bond even though no trial had been held and no plea had been entered for the defendant; and the judge directed the parent to surrender the receipt for the cash bond and then told the parent that the cash bond would not be refunded and that the receipt would not be returned to the parent, because the cash bond would take care of the fine, the judge’s conduct constituted willful misconduct in office. In re Romero, 100 N.M. 180, 668 P.2d 296 (1983) (decided prior to the 2011 recompilation).
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21-209. Ex parte communications.
A. A judge shall not initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties or their lawyers,
concerning a pending or impending matter, except as follows:
(1) When circumstances require it, ex parte communication for scheduling, administrative, or
emergency purposes, which does not address substantive matters, is permitted, provided:
(a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical
advantage as a result of the ex parte communication; and
(b) the judge makes provision promptly to notify all other parties of the substance of the ex
parte communication, and gives the parties an opportunity to respond.
(2) A judge may obtain the written advice of a disinterested expert on the law applicable to a
proceeding before the judge, if the judge gives advance notice to the parties of the person to be
consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable
opportunity to object and respond to the notice and to the advice received.
(3) A judge may consult with court staff and court officials whose functions are to aid the
judge in carrying out the judge‘s adjudicative responsibilities, or with other judges, provided the
judge makes reasonable efforts to avoid receiving factual information that is not part of the
record and does not abrogate the responsibility personally to decide the matter.
(4) A judge may, with the consent of the parties, confer separately with the parties and their
lawyers in an effort to settle matters pending before the judge.
(5) A judge may initiate, permit, or consider any ex parte communication when expressly
authorized by law, rule, or Supreme Court order to do so.
B. If a judge inadvertently receives an unauthorized ex parte communication bearing upon the
substance of a matter, the judge shall make provision promptly to notify the parties of the
substance of the communication and provide the parties with an opportunity to respond.
C. A judge shall not investigate facts in a matter independently, and shall consider only the
evidence presented and any facts that may properly be judicially noticed.
D. A judge shall make reasonable efforts, including providing appropriate supervision, to
ensure that this rule is not violated by court staff, court officials, and others subject to the judge‘s
direction and control.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge. A judge may utilize court staff for the purposes of screening potential ex parte communications. Court staff should return ex parte communications to the sender with the admonition that the sender, if an attorney, must comply with Rule 16-305(B) NMRA.
[2] Whenever the presence of a party or notice to a party is required by this rule, it is the party’s lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice is to be given.
[3] The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this rule. An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.
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[4] A judge may initiate, permit, or consider ex parte communications expressly authorized by law, rule, or Supreme Court order, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.
[5] A judge may consult with other judges on pending matters, but must avoid ex parte discussions of a case with judges who have previously been disqualified from hearing the matter, and with judges who have appellate jurisdiction over the matter.
[6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.
[7] A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge’s compliance with this Code. Such consultations are not subject to the restrictions of Paragraph (A)(2).
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Ex parte communications. — Where a judge engaged in ex parte communications with litigants, parties, officers and bail bondsmen in which the judge told defendants in cases not pending before the judge that the judge would help them out and to ask for the judge when they came to court, which resulted in the judge converting a juvenile bench warrant to an adult bench warrant and dismissing a case, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Giving advice to witness in case pending before judge. — Where the judge had an ex parte conversation with the complaining witness in a domestic violence case that was pending before the judge; the witness had been subpoenaed by the state to appear and testify at the witness’ spouse’s trial; the judge advised the witness that if the witness did not want to testify, there would be no adverse consequences; the witness did not appeal at the trial; the assistant district attorney informed the judge that the district attorney’s office had been informed of the ex parte communication with the witness; the judge began drafting a recusal; when the witness appeared, the judge recalled the case and dismissed it; and the judge subsequently produced a recusal that was different from the document that had been reviewed by the assistant district attorney, the judge’s conduct constituted willful misconduct in office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Making campaign promise to provide assistance if elected. — Where, during the time a judge was a candidate for magistrate court judge, the judge told a landlord that the judge would help if the landlord had a problem in court; when the judge learned that the landlord was having trouble with a tenant, the judge reviewed the lease and advised the landlord to file suit after the judge was elected; the judge also explained how the landlord could excuse the other magistrate court judges to make sure the judge heard the case; after the judge was elected, the landlord filed suit and excused the other magistrate court judges; and at a hearing on the case, the judge became impatient with the landlord and filed a recusal, the judge violated the Code of Judicial Conduct, subjecting the judge to removal from office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
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Adjudicating traffic cases for family members and friends. — Where a judge adjudicated more than twenty cases involving family members, friends, and family members of friends and staff, ex parte without hearings or taking evidence; the judge was not the assigned judge and adjudicated the cases before their scheduled arraignment dates, either deferring or continuing the cases with the requirement that no further traffic violations occur within ninety days; and where defendants had failed to appear, the judge cancelled bench warrants and dismissed charges for failure to appear, the judge’s conduct constituted willful misconduct in office. In re Griego, 2008-NMSC-020, 143 N.M. 698, 181 P.3d 690 (decided prior to the 2011 recompilation).
Allowing relationship to influence judicial conduct. — Where a judge was assigned a criminal case in which the defendant was charged with multiple counts of trafficking cocaine and distribution of methamphetamine; during the proceedings, the judge stipulated that the judge knew that by presiding over defendant’s case, the judge would not appear to be impartial because the judge had a personal relationship with the attorney for and fiancé of the defendant who subsequently became the spouse of the defendant; the judge did not recuse from the case; the defendant pled no contest; the pre-sentence report stated that the defendant was a drug dealer and recommended prison sentences; at the sentencing hearing, the judge considered assigning the defendant to a new drug court program in lieu of incarceration; the judge agreed with the chief judge to recuse from the case; at a sentencing hearing before the new judge, the defendant stated that the original judge wanted to revoke the recusal; the new judge recused; and the original judge revoked the recusal and accepted jurisdiction over sentencing, the judge’s conduct constituted willful misconduct in office. In re McBee, 2006-NMSC-024, 138 N.M. 482, 134 P.3d 769 (decided prior to the 2011 recompilation).
Ex parte communications with police officers about pending cases. — A judge who had ex parte communications with police officers concerning defendants’ out-of-court demeanor, attitude or behavior with the officers and about the use of "smiling" and "frowning" faces to be drawn on uniform traffic citations by the officers, which would inform the judge about defendants’ demeanor, attitude or behavior with the officers during traffic stops, the judge committed willful misconduct in office. In re Arnold, S.Ct. No. 26,645 (Filed January 10, 2001) (decided prior to the 2011 recompilation).
Ex parte communications with a relative about sentencing defendant. — Where a magistrate judge had ex parte communications with the former court administrator of the district court concerning the sentencing and disposition of a defendant who was a relative of the former court administrator, and the desire of the defendant’s family was that the defendant be ordered to obtain alcohol/drug counseling, the judge’s conduct constituted willful misconduct in office. In re Perea, S.Ct. No. 25,822 (Filed August 17, 1999) (decided prior to the 2011 recompilation).
21-210. Judicial statements on pending and impending cases.
A. A judge shall not make any public statement that might reasonably be expected to affect
the outcome or impair the fairness of a matter pending or impending in any court, or make any
nonpublic statement that might substantially interfere with a fair trial or hearing.
B. A judge shall not, in connection with cases, controversies, or issues that are likely to come
before the court, make pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.
C. A judge shall require court staff, court officials, and others subject to the judge‘s direction
and control to refrain from making statements that the judge would be prohibited from making
by Paragraphs A and B.
D. Notwithstanding the restrictions in Paragraph A, a judge may make public statements in the
course of official duties, may explain court procedures, and may comment on any proceeding in
which the judge is a litigant in a personal capacity.
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E. Subject to the requirements of Paragraph A, a judge may respond directly or through a third
party to allegations in the media or elsewhere concerning the judge‘s conduct in a matter.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] This rule’s restrictions on judicial speech are essential to the maintenance of the independence, integrity, and impartiality of the judiciary. The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process until final disposition.
[2] This rule does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity. The judge must not comment publicly on cases in which the judge is a litigant in an official capacity, such as a writ of mandamus.
[3] The judge should consider whether it may be preferable for a third party, rather than the judge, to respond or issue statements in connection with allegations concerning the judge’s conduct in a matter.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Intervening in trial. — Where in a DWI trial, the judge stepped off the bench to assist an officer in presenting the officer’s case and in sight and earshot of the jury, told the court manager that the defendant "blew a .3", the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Abusing prestige of judicial office. — Where a municipal judge had private conversations with a contractor about the contractor’s personal financial dispute with landowners who allegedly owned the contractor money for cleaning up the landowners’ property; the judge called the landowners and left a message on the landowners’ answering machine in which the judge identified himself as a judge and stated that the judge was calling about the financial dispute between them and the contractor, and that the judge wanted the matter cleared up; the judge subsequently wrote the landowners a letter on municipal stationery, using the judge’s title and court name discussing the contractor’s claim and indicating that a lawsuit would be filed if the contractor was not paid; two weeks later, the judge was assigned to preside over a nuisance action by the municipality concerning the land that the contractor had supposedly cleaned; and the judge accepted the case and issued a summons to the landowners that did not conform with the rules of procedure, the judge’s conduct constituted willful misconduct in office. In re Ramirez, S.Ct. No. 31,664 (Filed June 26, 2009) (decided prior to the 2011 recompilation).
Making campaign promise to provide assistance if elected. — Where, during the time a judge was a candidate for magistrate court judge, the judge told a landlord that the judge would help if the landlord had a problem in court; when the judge learned that the landlord was having trouble with a tenant, the judge reviewed the lease and advised the landlord to file suit after the judge was elected; the judge also explained how the landlord could excuse the other magistrate court judges to make sure the judge heard the case; after the judge was elected, the landlord filed suit and excused the other magistrate court judges; and at a hearing on the case, the judge became impatient with the landlord and filed a recusal, the judge violated the Code of Judicial Conduct, subjecting the judge to removal from office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
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21-211. Disqualification.
A. A judge shall disqualify himself or herself in any proceeding in which the judge‘s
impartiality might reasonably be questioned, including but not limited to the following
circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party‘s lawyer, or
personal knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge‘s spouse or domestic partner, or person within
the third degree of relationship to either of them, or the spouse or domestic partner of such a
person, or a member of the judge‘s staff is:
(a) a party to the proceeding, or an officer, director, general partner, managing member, or
trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be substantially affected by
the proceeding; or
(d) likely to be a material witness in the proceeding.
(3) The judge knows that he or she, individually or as a fiduciary, or the judge‘s spouse,
domestic partner, parent, or child, or any other member of the judge‘s family residing in the
judge‘s household, has an economic interest in the subject matter in controversy or is a party to
the proceeding.
(4) The judge, while a judge or a judicial candidate, has made a public statement, other than in
a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to
reach a particular result or rule in a particular way in the proceeding or controversy.
(5) The judge:
(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who
participated substantially as a lawyer in the matter during such association;
(b) served in governmental employment, and in such capacity participated personally and
substantially as a lawyer or public official concerning the proceeding, or has publicly expressed
in such capacity an opinion concerning the merits of the particular matter in controversy;
(c) was a material witness concerning the matter; or
(d) previously presided as a judge over the matter in another court.
B. A judge shall keep informed about the judge‘s personal and fiduciary economic interests,
and make a reasonable effort to keep informed about the personal economic interests of the
judge‘s spouse or domestic partner and minor children residing in the judge‘s household.
C. A judge subject to disqualification under this rule, other than for bias or prejudice under
Paragraph A(1), may disclose on the record the basis of the judge‘s disqualification and may ask
the parties and their lawyers to consider, outside the presence of the judge and court personnel,
whether to waive disqualification. If, following the disclosure, the parties and lawyers agree,
without participation by the judge or court personnel, that the judge should not be disqualified,
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the judge may participate in the proceeding. The agreement shall be incorporated into the record
of the proceeding.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] Under this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of Paragraphs (A)(1) through (A)(5) apply. The terms "recusal" and "disqualification" are often used interchangeably.
[2] A judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.
[3] The rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable.
[4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge’s impartiality might reasonably be questioned under Paragraph (A), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under Paragraph (A)(2)(c), the judge’s disqualification is required.
[5] The fact that an employee of the court is a party to the proceeding does not of itself disqualify the judge. The judge shall consider the specifics of the case in determining whether the judge’s impartiality might reasonably be questioned and if a recusal is required.
[6] In Caperton v. Massey Coal Co., 129 S. Ct. 2252 (2009), the United States Supreme Court held that the failure of a state supreme court justice to recuse when a party had made extraordinary and disproportionate contributions in support of the justice’s candidacy in the previous election violated the opposing party’s due process rights. The Court applied an objective standard and stated "that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising or directing the judge’s election campaign when the case was pending or imminent." Id. at 2263-64. The Court recognized that states may, in their codes of judicial conduct, set more stringent standards for disqualification than imposed by the due process clause. Id. at 2267. A judge’s impartiality might reasonably be questioned under Paragraph (A) of this rule as a result of campaign contributions even though they are not so extraordinary and disproportionate as to violate a person’s due process rights. The intent of the Code of Judicial Conduct is to insulate judges from this type of bias; Rules 21-402(D) and 21-403 NMRA contemplate that a judge or judicial candidate not solicit or be informed of campaign contributions from attorneys and litigants. Despite these prohibitions, a judge may become aware of contributions made on behalf of the judge’s campaign.
[7] Excessive contributions to a judge’s campaign by a party or a party’s attorney may also undermine the public’s confidence in a fair and impartial judiciary. An appearance of impropriety may result when attorneys or parties appearing before a judge generate large amounts of money for a campaign, either by contributing directly to the campaign, by contributing to political action committees supporting the judge, or by organizing large fund raisers. However, contributions made by attorneys to the campaigns of judicial candidates would not require a judge’s disqualification in the absence of extraordinary circumstances.
[8] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.
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[9] "Economic interest," as set forth in the terminology section, means ownership of more than a de minimis legal or equitable interest. Except for situations in which a judge participates in the management of such a legal or equitable interest, or the interest could be substantially affected by the outcome of a proceeding before a judge, it does not include:
(a) an interest in the individual holdings within a mutual or common investment fund;
(b) an interest in securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge’s spouse, domestic partner, parent, or child serves as a director, officer, advisor, or other participant;
(c) a deposit in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or similar proprietary interests; or
(d) an interest in the issuer of government securities held by the judge.
[10] Remittal of disqualification. A remittal procedure provides the parties an opportunity to proceed without delay if they wish to waive the disqualification. To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek, or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule. A party may act through counsel if counsel represents on the record that the party has been consulted and gives informed consent. As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement.
[11] The issue of whether a judge is required to recuse for an appearance of impropriety after being threatened by a defendant is "whether an objective, disinterested observer, fully informed of the underlying facts, would entertain significant doubt that justice would be done absent recusal." State v. Riordan, 2009-NMSC-022, ¶ 11, 146 N.M. 281, 209 P.3d. 773 (internal quotation marks and citations omitted). Threats alone do not require recusal, and deference should be given to the trial court’s decision when there is a significant possibility that the defendant is attempting to manipulate the justice system. Id.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
Threats against a presiding judge. — Where thee criminal cases pending against the defendant were assigned to the same judge; during the pendency of the three cases, the defendant was charged with conspiring to commit an assault with a deadly weapon on the judge; the judge filed a recusal in the conspiracy case, but not in the other three pending cases; and there was no showing of bias by the judge against the defendant, the judge did not abuse the judge’s discretion in denying the defendant’s motion requesting the recusal of the judge. State v. Riordan, 2009-NMSC-022, 146 N.M. 281, 209 P.3d 773 (decided prior to the 2011 recompilation).
Denial of recusal not an abuse of discretion. — Where defendant was a child offender under the juvenile system; the court determined that defendant was not amenable to rehabilitation or treatment as a child and sentenced defendant as an adult after defendant pled guilty to second degree murder; prior to being appointed as district judge, the trial judge had been appointed as a contract public defender to represent the victim, who had been murdered by defendant, in a juvenile delinquency proceeding; the judge’s former law partner actually appeared at all the hearings in the victim’s case; and the judge did not personally represent the victim, engage in plea negotiations on the victim’s behalf, discuss a plea with the victim or the victim’s parents, appear before the court on behalf of the victim or the victim’s parents, or have direct contact with the victim in the juvenile proceedings, the judge did not err in denying defendant’s request for recusal. State v. Trujillo, 2009-NMCA-128, 147 N.M. 334, 222 P.3d 1040, cert. quashed, 2010-NMCERT-011 (decided prior to the 2011 recompilation).
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Judge acting as mediator and as hearing officer to impose sanctions. — Where a district judge appointed another district judge as a mediator to conduct a settlement conference; the mediator judge was subsequently appointed to hear motions for sanctions against one party for alleged bad faith participation in the settlement conference; the mediator judge heard the motions, made findings of fact, concluded that the party had conducted itself in bad faith at the conference, and entered an order requiring the party to pay a sanction; and the appointing district judge independently reviewed the mediator judge’s decision and came to its own independent conclusion regarding sanctions; the appointing judge did not abuse its discretion in appointing the mediator judge to hear the motions for sanctions. Carlsbad Hotel Associates, L.L.C. v. Patterson-UTI Drilling Co., 2009-NMCA-005, 145 N.M. 385, 199 P.3d 288, cert. quashed, 2010-NMCERT-001 (decided prior to the 2011 recompilation).
Extrajudicial source. — The refusal of a judge to recuse in a malicious abuse of process case was proper where the analogy the court drew between a party and a well-known literary character (Jay Gatsby) did not establish any meaningful extrajudicial source. Dawley v. La Puerta Architectural Antiques, Inc., 2003-NMCA-029,133 N.M. 389, 62 P.3d 1271 (decided prior to the 2011 recompilation).
Motion to recuse after waiver. — Where the district judge disclosed the basis for the judge’s disqualification and the respondent waived disqualification by agreeing to abide by the judge’s decisions on all issues of the case, the judge was not required to recuse upon the motion of the petitioner after the waiver. In re Adoption Petn. of Rebecca M., 2008-NMCA-038, 143 N.M. 554, 178 P.3d 839 (decided prior to the 2011 recompilation).
Request for findings of fact and conclusions of law. — Because the court had decided in the state’s favor, it was reasonable for the trial court to want to see requested findings of fact and conclusions of law from the plaintiff. Its request for those findings and conclusions did not show a bias or prejudice that would necessitate recusal, despite the defendant’s assertion of an apparent personal interest of the court in ensuring that the state submit its requested findings and conclusions. State ex rel. Taxation & Revenue Dep’t Motor Vehicle Div. v. Van Ruiten, 107 N.M. 536, 760 P.2d 1302 (Ct. App.), cert. denied, 107 N.M. 413, 759 P.2d 200 (1988) (decided prior to the 2011 recompilation).
Judge’s relatives having ties to the victim. — Recusal of a judge at a murder trial was not required where the judge’s brother-in-law was the attorney representing the victim’s family in a wrongful death action against defendant and the judge’s son was employed as a law clerk by the district attorney. State v. Fero, 105 N.M. 339, 732 P.2d 866 (1987), affirmed, 107 N.M. 369, 758 P.2d 783 (1988) (decided prior to the 2011 recompilation).
Duty to exercise judicial function. — Except in those cases where a judge’s impartiality might be reasonably questioned, the judge must exercise the judge’s judicial function. Gerety v. Demers, 92 N.M. 396, 589 P.2d 180 (1978) (decided prior to the 2011 recompilation).
Recusal rests within the discretion of the trial judge. Demers v. Gerety, 92 N.M. 749, 595 P.2d 387 (Ct. App.), affirmed in part, reversed in part, 92 N.M. 396, 589 P.2d 180 (1978); Klindera v. Worley Mills, Inc., 96 N.M. 743, 634 P.2d 1295 (Ct. App. 1981) (decided prior to the 2011 recompilation).
Judge has discretionary power to disqualify sua sponte whenever the existence of any semblance of judicial bias or impropriety in a proceeding in the judge’s court comes to the judge’s attention. Demers v. Gerety, 92 N.M. 749, 595 P.2d 387 (Ct. App.), affirmed in part, reversed in par, 92 N.M. 396, 589 P.2d 180 (1978) (decided prior to the 2011 recompilation).
Statement of reasons for recusal not required. — When a recusal is challenged, and the challenge is denied, a district judge does not have a duty to state in the order of denial that the judge has valid reasons for recusing. Gerety v. Demers, 92 N.M. 396, 589 P.2d 180 (1978) (decided prior to the 2011 recompilation).
Compelling constitutional, statutory or ethical reason for recusal required. — Although the reasons for a judge to disqualify may be personal and the judge need not state them, nonetheless a judge has a duty to perform the judge’s judicial role, and the judge has no right to disqualify unless there is a
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compelling constitutional, statutory or ethical cause for doing so. Gerety v. Demers, 92 N.M. 396, 589 P.2d 180 (1978) (decided prior to the 2011 recompilation).
Grounds relied on for disqualification must be adequate, because a judge has no right to disqualify in the absence of a valid reason. Demers v. Gerety, 92 N.M. 749, 595 P.2d 387 (Ct. App.), affirmed in part, reversed in part, 92 N.M. 396, 589 P.2d 180 (1978) (decided prior to the 2011 recompilation).
Suspicion of bias or prejudice is not enough to disqualify a judge. Roybal v. Morris, 100 N.M. 305, 669 P.2d 1100 (Ct. App. 1983) (decided prior to the 2011 recompilation).
Casual transaction cannot be basis of disqualification. — A casual transaction between people is not a negative confrontation, so as to amount to an appearance of bias requiring voluntary disqualification. Lujan v. N.M. State Police Bd., 100 N.M. 149, 667 P.2d 456 (1983) (decided prior to the 2011 recompilation).
Impartiality throughout a case is required. — When a judge believes that the judge will be unable to remain impartial, the judge should recuse from the case in order to avoid a hint of impropriety. Gerety v. Demers, 92 N.M. 396, 589 P.2d 180 (1978) (decided prior to the 2011 recompilation).
Bias or prejudice as grounds for disqualification. — Bias or prejudice towards an attorney on each matter raised in the trial court is insufficient to disqualify a judge. This rule, however, is not absolute. If the bias or prejudice toward an attorney is of such a degree as to adversely affect the interest of the client, bias and prejudice toward an attorney is sufficient. Martinez v. Carmona, 95 N.M. 545, 624 P.2d 54 (Ct. App. 1980), cert. quashed, 95 N.M. 593, 624 P.2d 535 (1981) (decided prior to the 2011 recompilation).
When a district judge believes that the judge’s impartiality might reasonably be questioned with reference to bias and prejudice concerning a party, the judge must not exercise the judge’s judicial function. Martinez v. Carmona, 95 N.M. 545, 624 P.2d 54 (Ct. App. 1980), cert. quashed, 95 N.M. 593, 624 P.2d 535 (1981); Klindera v. Worley Mills, Inc., 96 N.M. 743, 634 P.2d 1295 (Ct. App. 1981) (decided prior to the 2011 recompilation).
Recusal not required for prior judicial encounters. — The defendant’s arguments that the trial judge was biased, based on the judge’s previous contempt charges and sanctions or dislike toward the defendant, were without merit, since bias requiring recusal must arise from a personal, extra-judicial source, not a judicial source. Purpura v. Purpura, 115 N.M. 80, 847 P.2d 314 (Ct. App. 1993) (decided prior to the 2011 recompilation).
Review of decision not to recuse. — A decision contrary to recusal is reviewable on appeal only if it amounts to an abuse of sound judicial discretion. Martinez v. Carmona, 95 N.M. 545, 624 P.2d 54 (Ct. App. 1980), cert. quashed, 95 N.M. 593, 624 P.2d 535 (1981) (decided prior to the 2011 recompilation).
When a movant has failed to meet its burden of establishing that the judge has a personal or extrajudicial bias or prejudice against it, the judge’s refusal to disqualify is proper. United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 629 P.2d 231 (1980), appeal dismissed, 451 U.S. 901, 101 S.Ct. 1966, 68 L. Ed 2d 289 (1981) (decided prior to the 2011 recompilation).
Comment reflecting feelings about violent crimes after conviction was obtained. — A comment reflecting the judge’s feelings about violent crime once a conviction was obtained did not suggest that the judge had a personal bias or prejudice against defendant during trial. State v. Swafford, 109 N.M. 132, 782 P.2d 385 (Ct. App.), cert. denied, 109 N.M. 54, 781 P.2d 782 (1989) (decided prior to the 2011 recompilation).
Imposition of the maximum sentence. — A claim of judicial bias cannot be based upon the imposition of the maximum legal sentence. State v. Swafford, 109 N.M. 132, 782 P.2d 385 (Ct. App.), cert. denied, 109 N.M. 54, 781 P.2d 782 (1989) (decided prior to the 2011 recompilation).
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Judge’s refusal to accept a tendered plea agreement did not demonstrate judicial bias or prejudice, where, when the plea and disposition agreement was tendered, the judge reserved ruling on it until the judge could consider a presentence report, information or treatment programs, and written statements from the victim of the crime and the victim’s sibling regarding their feelings and views on the proposed disposition. State v. Swafford, 109 N.M. 132, 782 P.2d 385 (Ct. App.), cert. denied, 109 N.M. 54, 781 P.2d 782 (1989) (decided prior to the 2011 recompilation).
JUDICIAL REPRIMANDS
Failure to recuse after appearance of impropriety occurs. — Where a district judge developed a romantic relationship with an attorney who had cases pending before the judge; the judge told the attorney that the judge would enter a blanket recusal in the attorney’s cases, but failed to do so; and when the attorney’s cases came before the judge, the judge entered a recusal, made dishonest statements from the bench concerning the judge’s reasons for entering a recusal, and notwithstanding the entry of a recusal, entered rulings in the cases, the judge committed willful misconduct in office. In re Schwartz, 2011-NMSC-019, 149 N.M. 721, 255 P.3d 299 (decided prior to the 2011 recompilation).
Abusing prestige of judicial office. — Where a municipal judge had private conversations with a contractor about the contractor’s personal financial dispute with landowners who allegedly owed the contractor money for cleaning up the landowners’ property; the judge called the landowners and left a message on the landowners’ answering machine in which the judge identified himself as a judge and stated that the judge was calling about the financial dispute between them and the contractor and that the judge wanted the matter cleared up; the judge subsequently wrote the landowners a letter on municipal stationery, using the judge’s title and court name discussing the contractor’s claim and indicating that a lawsuit would be filed if the contractor was not paid; two weeks later, the judge was assigned to preside over a nuisance action by the municipality concerning the land that the contractor had supposedly cleaned; and the judge accepted the case and issued a summons to the landowners that did not conform with the rules of procedure, the judge’s conduct constituted willful misconduct in office. In re Ramirez, S.Ct. No. 31,664 (Filed June 26, 2009) (decided prior to the 2011 recompilation).
Giving advice to a witness in a case pending before the judge. — Where the judge had an ex parte conversation with the complaining witness in a domestic violence case that was pending before the judge; the witness had been subpoenaed by the state to appear and testify at the witness’ spouse’s trial; the judge advised the witness that if the witness did not want to testify, there would be no adverse consequences; the witness did not appeal at the trial; the assistant district attorney informed the judge that the district attorney’s office has been informed of the ex parte communication with the witness; the judge began drafting a recusal; when the witness appeared, the judge recalled the case and dismissed it; and the judge subsequently produced a recusal that was different from the document that had been reviewed by the assistant district attorney, the judge’s conduct constituted willful misconduct in office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Making campaign promise to provide assistance if elected. — Where, during the time a judge was a candidate for magistrate court judge, the judge told a landlord that the judge would help if the landlord had a problem in court; when the judge learned that the landlord was having trouble with a tenant, the judge reviewed the lease and advised the landlord to file suit after the judge was elected; the judge also explained how the landlord could excuse the other magistrate court judges to make sure the judge heard the case; after the judge was elected, the landlord filed suit and excused the other magistrate court judges; and at a hearing on the case, the judge became impatient with the landlord and filed a recusal, the judge violated the Code of Judicial Conduct, subjecting the judge to removal from office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Insufficient evidence of willful misconduct in office. — Where a judge called the jail and set bond for a defendant who was the parent of the judge’s friend and who had been arrested for DWI; when no one was available to accept the bond, the judge changed the release order to release the defendant to the custody of the defendant’s spouse and hand-delivered the release order late at night to the jail in another
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town; the judge presided over the arraignment of the defendant; and the judge filed a recusal when a newspaper reported on the matter, there was no clear and convincing evidence that the judge committed willful misconduct in office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
Adjudicating traffic cases for family members and friends. — Where a judge adjudicated more than twenty cases involving family members, friends, and family members of friends and staff, ex parte without hearings or taking evidence; the judge was not the assigned judge and adjudicated the cases before their scheduled arraignment dates, either deferring or continuing the cases with the requirement that no further traffic violations occur within ninety days; and where defendants had failed to appear, the judge cancelled bench warrants and dismissed charges for failure to appear, the judge’s conduct constituted willful misconduct in office. In re Griego, 2008-NMSC-020, 143 N.M. 698, 181 P.3d 690 (decided prior to the 2011 recompilation).
Insufficient evidence of willful misconduct. — Where a municipal judge accepted an uncounseled guilty plea and sentenced the defendant; the defendant’s attorney appealed to the district court; the municipal judge believed that the municipal attorney and the defendant’s attorney had misrepresented the municipal proceedings to the district court judge and charged the municipal attorney and the defendant’s attorney with contempt; the municipal judge did not file a recusal; a pretrial hearing and a trial were automatically scheduled by the clerk’s office; and when the municipal judge reviewed the district court proceedings and discovered that the municipal proceedings had not been misrepresented to the district court, the municipal judge dismissed the contempt charges, the evidence did not clearly and convincingly demonstrate that, by acting in a case in which the municipal judge should have filed a recusal, the municipal judge’s actions constituted willful misconduct in office. In re Locatelli, 2007-NMSC-029, 141 N.M. 755, 161 P.3d 252 (decided prior to the 2011 recompilation).
Allowing relationship to influence judicial conduct. — Where a judge was assigned a criminal case in which the defendant was charged with multiple counts of trafficking cocaine and distribution of methamphetamine; during the proceedings, the judge stipulated that the judge knew that by presiding over defendant’s case the judge would not appear to be impartial, because the judge had a personal relationship with the attorney for and fiancé of the defendant who subsequently became the spouse of the defendant; the judge did not recuse from the case; the defendant pled no contest; the pre-sentence report stated that the defendant was a drug dealer and recommended prison sentences; at the sentencing hearing, the judge considered assigning the defendant to a new drug court program in lieu of incarceration; the judge agreed with the chief judge to recuse from the case; at a sentencing hearing before the new judge, the defendant stated that the original judge wanted to revoke the recusal; the new judge recused; and the original judge revoked the recusal and accepted jurisdiction over sentencing, the judge’s conduct constituted willful misconduct in office. In re McBee, 2006-NMSC-024, 138 N.M. 482, 134 P.3d 769 (decided prior to the 2011 recompilation).
Personal involvement with and harassment of trial counsel. — Where a judge presided over and took judicial action in cases in which the assistant district attorney appeared on behalf of the State during the time the judge was engaged in a personal relationship with the assistant district attorney; the judge failed to inform all counsel or parties of record of the judge’s relationship with the assistant district attorney in cases where the assistant district attorney appeared before the judge; the judge failed to be patient, dignified and courteous to counsel by making inappropriate remarks to assistant district attorneys about the judge’s rulings in front of defendants, defense counsel and co-counsel; and in one case, the judge suppressed evidence of a breath test, refused to allow the assistant district attorney to call the officer who administered the breath test to testify, and then taunted the assistant district attorney about not being able to prove the state’s case, the judge committed willful misconduct in office. In re Galvan, S.Ct. No. 28,609 (Filed May 17, 2004) (decided prior to the 2011 recompilation).
Involvement in friend’s criminal case. — Where a judge became involved in the pending criminal case of a friend by speaking with the arresting state police officer by cellular telephone during the traffic stop and arrest; personally going to the adult detention center and ordered the friend’s release and taking the friend to the judge’s house, and speaking to a registered nurse and asking the nurse to draw an independent blood sample from the friend; and the judge had an alcoholic drink before going to the jail to
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release the friend and may have had the odor of alcohol on the judge’s breath, the judge’s conduct constituted willful misconduct in office. In re Sanchez, S.Ct. No. 25,821 (Filed March 14, 2001) (decided before the 2011 recompilation).
Ex parte communications with a relative about sentencing defendant. — Where a magistrate judge had ex parte communications with the former court administrator of the district court concerning the sentencing and disposition of a defendant who was a relative of the former court administrator and the desire of the defendant’s family was that the defendant be ordered to obtain alcohol/drug counseling, the judge’s conduct constituted willful misconduct in office. In re Perea, S.Ct. No. 25,822 (Filed August 17, 1999) (decided prior to the 2011 recompilation).
Intentional denial of right to appeal. — Where a judge ruled in favor of the defendant, refused to enter a judgment in the case to prevent the plaintiff from appealing in order to force the plaintiff to settle with the defendant; when the Supreme Court ordered the judge to enter a judgment, the judge expanded the issues litigated in the case; and after being reversed, the judge refused to award costs to the plaintiff, precipitating another appeal, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Adjudicating cases in which the judge has a personal interest. — Where a judge filed a criminal complaint for criminal trespass against the defendant who had disregarded the judge’s direction by visiting the premises rented by the judge’s tenant; scheduled an arraignment in the judge’s court, and later filed a recusal in the case; and in a second case, the judge filed a criminal complaint for criminal damage to property against the defendant, who was a former tenant of the judge, arraigned the defendant, committed the defendant to jail, and dismissed the charges without prejudice when the defendant agreed to repair the damages to the premises, which the defendant had rented from the judge, the judge’s conduct constituted willful misconduct in office. In re Lucero, 102 N.M. 745, 700 P.2d 648 (1985) (decided prior to the 2011 recompilation).
21-212. Supervisory duties.
A. A judge shall require court staff, court officials, and others subject to the judge‘s direction
and control to act in a manner consistent with the judge‘s obligations under this Code.
B. A judge with supervisory authority for the performance of other judges shall take
reasonable measures to ensure that those judges properly discharge their judicial responsibilities,
including the prompt disposition of matters before them.
C. A judge shall not direct court personnel to engage in conduct on the judge‘s behalf or as the
judge‘s representative when such conduct would violate the Code if undertaken by the judge.
D. A judge shall not retaliate against court personnel who refuse to engage in conduct that
would violate the Code if undertaken by the judge.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] A judge is responsible for his or her own conduct and for the conduct of others, such as staff, when those persons are acting at the judge’s direction and control.
[2] Public confidence in the judicial system depends upon timely justice. To promote the efficient administration of justice, a judge with supervisory authority must take the steps needed to ensure that judges under his or her supervision administer their workloads promptly.
[3] A judge shall inform and require the judge’s staff, court officials, and others subject to the judge’s direction and control to observe the standards of confidentiality, fidelity, and diligence that apply to the judge and to refrain from bias and prejudice in the performance of their official duties.
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[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Adjudicating traffic cases for family members and friends. — Where a judge adjudicated more than twenty cases involving family members, friends, and family members of friends and staff, ex parte without hearings or taking evidence; the judge was not the assigned judge and adjudicated the cases before their scheduled arraignment dates, either deferring or continuing the cases with the requirement that no further traffic violations occur within ninety days; and where defendants had failed to appear, the judge cancelled bench warrants and dismissed charges for failure to appear, the judge’s conduct constituted willful misconduct in office. In re Griego, 2008-NMSC-020, 143 N.M. 698, 181 P.3d 690 (decided prior to the 2011 recompilation).
Directing secretary to handle traffic docket. — Where a judge took a vacation knowing that the judge would not return in time to handle the judge’s traffic docket; the judge called the judge’s secretary, told the secretary that the judge’s return had been delayed, and instructed the secretary to handle the judge’s traffic docket; the secretary handled the traffic docket and used the judge’s signature stamp to process the docket; and when the other judges, court personnel, and the media learned about what had occurred, the judge reviewed and signed the cases that the judge’s secretary had handled in the judge’s absence, the judge’s conduct constituted willful misconduct in office. In re Griego, S.Ct. No. 30,203 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Failure to hear cases, follow rules and respect judges and court officials. — Where a judge intentionally violated courthouse rules and policies; treated security officers in a hostile, rude, angry and threatening manner; used offensive language toward security officers and court employees; tossed objects, yelled and pounded on a desk when court personnel withheld the judge’s assistant’s paycheck pursuant to court rules and policies; asserted that the assistant was not required to comply with security guidelines and policies and prohibited security personnel from screening the assistant; permitted the assistant to behave in an unprofessional manner and condoned and assisted the assistant in violating and refusing to comply with court policies, being rude to court employees, and complaining about other judges; refused to issue bench warrants during traffic arraignment court week because the judge did not want the assistant to process the warrants during traffic arraignment dockets and filed recusals in those cases; and waived prior supervised probation costs imposed by statute, the judge committed willful misconduct in office. In re Barnhart, S.Ct. No 29,379 (Filed October 19, 2005) (decided prior to the 2011 recompilation).
Interference in child’s criminal case. — Where the adult child and friends of the child of a district court judge were cited for drinking in public in violation of a municipal ordinance; as the police officers were issuing the citations, the judge identified the judge to one of the officers as the child’s parent by showing the officer the judge’s court identification card and driver’s license; the judge asked the officer if the officer remembered who the judge was; the judge collected all of the citations from the recipients and later instructed the judge’s bailiff to assist the child and the child’s friends in responding to the citations in municipal court; the bailiff prepared and filed written waivers of arraignment and not guilty pleas on municipal court forms; when pretrial conferences were scheduled, the judge contacted a municipal judge who was not the assigned judge to advise the municipal judge the judge was sending the judge’s child and some of the friends to the municipal judge to change their pleas before the pretrial conference set by the assigned judge was scheduled to occur; and the judge’s child and some of the friends appeared before the municipal judge and pled no contest and received more lenient sentences than the child’s
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friends who appeared before the assigned municipal judge, the judge’s conduct constituted willful misconduct in office. In re Ramirez, 2006-NMSC-021, 139 N.M. 529, 135 P.3d 230 (decided prior to the 2011 recompilation).
21-213. Administrative appointments.
A. In making administrative appointments, including the appointment of lawyers, a judge:
(1) shall exercise the power of appointment impartially and on the basis of merit;
(2) shall avoid nepotism, favoritism, and unnecessary appointments; and
(3) shall avoid the appearance of impropriety.
B. A judge shall not approve compensation of appointees beyond the fair value of services
rendered.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, mediators, receivers, and guardians, and personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Paragraph (A).
[2] Unless otherwise defined by law, nepotism is the appointment or hiring of any relative within the third degree of relationship of either the judge or the judge’s spouse or domestic partner, or the spouse or domestic partner of such relative.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-214. Disability and impairment.
A. A judge who has a reasonable belief that the performance of a lawyer or another judge is
impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take
appropriate action, which may include a confidential referral to the Lawyer‘s Assistance
Committee of the State Bar, Alcoholics Anonymous, Narcotics Anonymous, or other support
group recognized by the New Mexico Disciplinary Board or the New Mexico Judicial Standards
Commission.
B. Notwithstanding the provisions of Paragraph A of this rule, any incumbent judge who
illegally sells, purchases, possesses, or uses drugs or any substance considered unlawful under
the provisions of the Controlled Substances Act, shall be subject to discipline under the Code of
Judicial Conduct.
C. Any judge who has specific, objective, and articulable facts, or reasonable inferences that
can be drawn from those facts, that a judge has engaged in the misconduct described in
Paragraph B of this rule shall report those facts to the New Mexico Judicial Standards
Commission. Reports of such misconduct shall include the following information:
(1) the name of the person filing the report;
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(2) the address and telephone number where the person may be contacted;
(3) a detailed description of the alleged misconduct; and
(4) any supporting evidence or material that may be available to the reporting person.
The Judicial Standards Commission shall review and evaluate reports of such misconduct to
determine if the report warrants further review or investigation.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] "Appropriate action" means action intended and reasonably likely to help the judge or lawyer in question address the problem and prevent harm to the justice system or the public at large. Depending upon the circumstances, appropriate action may include, but is not limited to, speaking directly to the impaired person, notifying an individual with supervisory responsibility over the impaired person, or making a referral to an assistance program.
[2] Taking or initiating corrective action by way of referral to an assistance program may satisfy a judge’s responsibility under this rule. Assistance programs have many approaches for offering help to impaired judges and lawyers, such as intervention, counseling, or referral to appropriate health care professionals. Depending on the gravity of the conduct that has come to the judge’s attention, however, the judge may be required to take other action, such as reporting the impaired judge or lawyer to the appropriate authority, agency, or body. See Rule 21-215 NMRA.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Drug abuse. — Where a judge knowingly evaded the service of an order of the Judicial Standards Commission to submit to drug testing; the judge did not appear for drug testing for more than seventy-two hours after the judge learned of the commission’s order, refused to submit to the collection of a sample, and ordered the judge’s own tests to obtain results that would be available only to the judge; and when the judge finally submitted to the drug testing as ordered by the commission, the judge tested positive for cocaine, the judge’s conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (decided prior to the 2011 recompilation).
Alcoholism. — Where a judge recessed a criminal jury trial for a long holiday weekend; the judge did not return to court on the date set for the completion of the trial; the judge told an administrative assistant that the judge was ill, but would be in court in the afternoon; the judge did not return that day and the judge’s staff rescheduled the trial for two days later; on the day the trial was to resume, the judge told the assistant that the judge was hospitalized for heart-related tests; after the trial was twice reset due to the judge’s unavailability, a stipulated mistrial order was entered; the judge was absent for two weeks during which the judge was hospitalized for six days; the judge’s heart ailment and the hospitalization were due to alcohol withdrawal; and to justify the judge’s absence, the judge told a reporter that the judge was being treated for and was recovering from a mild heart attack, the judge’s conduct constituted willful misconduct in office. In re Pope, S.Ct. No. 29,778 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
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21-215. Responding to judicial and lawyer misconduct.
A. A judge who knows that another judge has committed a violation of this Code that raises a
substantial question regarding the judge‘s honesty, trustworthiness, or fitness as a judge in other
respects shall inform the Judicial Standards Commission.
B. A judge who knows that a lawyer has committed a violation of the Rules of Professional
Conduct that raises a substantial question regarding the lawyer‘s honesty, trustworthiness, or
fitness as a lawyer in other respects shall inform the Disciplinary Board.
C. A judge who receives information indicating a substantial likelihood that another judge has
committed a violation of this Code shall take appropriate action.
D. A judge who receives information indicating a substantial likelihood that a lawyer has
committed a violations of the Rules of Professional Conduct shall take appropriate action.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] Taking action to address known misconduct is a judge’s obligation. Paragraphs (A) and (B) impose an obligation on the judge to report to the appropriate disciplinary authority the known misconduct of another judge or a lawyer that raises a substantial question regarding the honesty, trustworthiness, or fitness of that judge or lawyer. Ignoring or denying known misconduct among one’s judicial colleagues or members of the legal profession undermines a judge’s responsibility to participate in efforts to ensure public respect for the justice system. This rule limits the reporting obligation to those offenses that an independent judiciary must rigorously endeavor to prevent.
[2] A judge who does not have actual knowledge that another judge or lawyer may have committed misconduct, but receives information indicating a substantial likelihood of such misconduct, is required to take appropriate action under Paragraphs (C) and (D). Appropriate action may include, but is not limited to, communicating with a supervising judge, or reporting the suspected violation to the appropriate authority or other agency or body. Similarly, actions to be taken in response to information indicating that a lawyer committed a violation of the Rules of Professional Conduct may include, but are not limited to, communicating directly with the lawyer who may have committed the violation, or reporting the suspected violation to the appropriate authority or other agency or body.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-216. Cooperation with disciplinary authorities.
A. A judge shall cooperate and be candid and honest with and comply with all rules,
requirements, and procedures of the New Mexico Judicial Standards Commission, the New
Mexico Disciplinary Board, and the New Mexico Judicial Performance Evaluation
Commission.
B. A judge shall not retaliate, directly or indirectly, against a person known or suspected to
have filed a complaint or to have assisted or cooperated with an investigation of a judge or a
lawyer.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
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[1] Cooperation with investigations and proceedings of judicial and lawyer discipline agencies, as required in Paragraph (A), instills confidence in judges’ commitment to the integrity of the judicial system and the protection of the public.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Refusal to submit to drug testing. — Where a judge knowingly evaded the service of an order of the Judicial Standards Commission to submit to drug testing; the judge did not appear for drug testing for more than seventy-two hours after the judge learned of the commission’s order, refused to submit to the collection of a sample, and ordered the judge’s own tests to obtain results that would be available only to the judge; and when the judge finally submitted to the drug testing as ordered by the commission, the judge tested positive for cocaine, the judge’s conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (decided prior to the 2011 recompilation).
Failure to cooperate with the Judicial Standards Commission. — Where a judge failed to cooperate with and comply with the rules, requirements, and procedures of the Judicial Standards Commission by failing to file a written response to the commission’s notice of preliminary investigation, the judge’s conduct was willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed May 7, 2001) (decided prior to the 2011 recompilation).
21-300. Canon 3.
A judge shall conduct the judge‘s personal and extrajudicial activities to minimize the risk of
conflict with the obligations of judicial office.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
21-301. Extrajudicial activities in general.
A judge may engage in extrajudicial activities, except as prohibited by law or this Code.
However, when engaging in extrajudicial activities, a judge shall not:
A. participate in activities that will interfere with the proper performance of the judge‘s
judicial duties;
B. participate in activities that will lead to frequent disqualification of the judge;
C. participate in activities that would appear to a reasonable person to undermine the judge‘s
independence, integrity, or impartiality;
D. engage in conduct that would appear to a reasonable person to be coercive; or
E. make use of court premises, staff, stationery, equipment, or other resources, except for
incidental use for activities that concern the law, the legal system, or the administration of
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justice.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities. Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal, or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law. See Rule 21-307 NMRA.
[2] Participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.
[3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge’s official or judicial actions, are likely to appear to a reasonable person to call into question the judge’s integrity and impartiality. Examples include jokes or other remarks that demean individuals based upon race, religion, color, national origin, ethnicity, ancestry, sex, sexual orientation, gender identity, marital status, spousal affiliation, socioeconomic status, political affiliation, age, physical or mental handicap or serious medical condition, or undermine the public’s confidence in or perception of the judicial process. For the same reason, a judge’s extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. See Rule 21-306 NMRA.
[4] While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as coercive. For example, depending upon the circumstances, a judge’s solicitation of contributions or memberships for an organization, even as permitted by Rule 21-307(A) NMRA, might create the risk that the person solicited would feel obligated to respond favorably, or would do so to curry favor with the judge.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Failure to recuse after appearance of impropriety occurs. — Where a district judge developed a romantic relationship with an attorney who had cases pending before the judge; the judge told the attorney that the judge would enter a blanket recusal in the attorney’s cases, but failed to do so; and when the attorney’s cases came before the judge, the judge entered a recusal, made dishonest statements from the bench concerning the judge’s reasons for entering a recusal, and notwithstanding the entry of a recusal, entered rulings in the cases, the judge committed willful misconduct in office. In re Schwartz, 2011-NMSC-019, 149 N.M. 721, 255 P.3d 299 (decided prior to the 2011 recompilation).
Napping. — Where a judge took naps during the noon hour in view of the public and court staff and on one occasion fell asleep while defendants were waiting for paperwork from the judge’s secretary, the judge’s conduct constituted willful misconduct in office. In re Guillory, S.Ct. No. 31,920 (Filed December 7, 2010) (decided prior to the 2011 recompilation).
Unlawfully accepting per diem expenses. — Where the judge wanted to attend training in another municipality; the judge certified and submitted a travel voucher claiming reimbursement for per diem
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expenses; the training was cancelled; the judge arranged to pick up the training material in the other municipality, drove to the other municipality, and then drove to another municipality out-of-state; and the judge told the treasurer of the municipality that the training had been cancelled because of bad weather, the judge’s conduct constituted willful misconduct in office. In re Lozano, S.Ct. No. 29,264 (Filed June 8, 2010) (decided prior to the 2011 recompilation).
Abusing prestige of judicial office. — Where a municipal judge had private conversations with a contractor about the contractor’s personal financial dispute with landowners who allegedly owed the contractor money for cleaning up the landowners’ property; the judge called the landowners and left a message on the landowners’ answering machine in which the judge identified himself as a judge and stated that the judge was calling about the financial dispute between them and the contractor, and that the judge wanted the matter cleared up; the judge subsequently wrote the landowners a letter on municipal stationery, using the judge’s title and court name discussing the contractor’s claim and indicating that a lawsuit would be filed if the contractor was not paid; two weeks later, the judge was assigned to preside over a nuisance action by the municipality concerning the land that the contractor had supposedly cleaned; and the judge accepted the case and issued a summons to the landowners that did not conform with the rules of procedure, the judge’s conduct constituted willful misconduct in office. In re Ramirez, S.Ct. No. 31,664 (Filed June 26, 2009) (decided prior to the 2011 recompilation).
Interference in a friend’s criminal case. — Where a judge developed a personal relationship with the defendant in a DUI case, told the presiding judge at the defendant’s bond hearing to make special concessions with regard to the defendant’s bond, talked to the presiding judge at the defendant’s probation violation hearing to influence the disposition of the case, instructed the court clerks to issue a clearance of the defendant’s driver’s license, and attempted to influence a police officer when the defendant was stopped for speeding, the judge’s conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (decided prior to the 2011 recompilation).
Drug abuse. — Where a judge knowingly evaded the service of an order of the Judicial Standards Commission to submit to drug testing; the judge did not appear for drug testing for more than seventy-two hours after the judge learned of the commission’s order and refused to submit to the collection of a sample; ordered the judge’s own tests to obtain results that would be available only to the judge; and when the judge finally submitted to the drug testing as ordered by the commission, the judge tested positive for cocaine, the judge’s conduct constituted willful misconduct in office. In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876 (decided prior to the 2011 recompilation).
Alcoholism. — Where a judge recessed a criminal jury trial for a long holiday weekend; the judge did not return to court on the date set for the completion of the trial; the judge told an administrative assistant that the judge was ill, but would be in court in the afternoon; the judge did not return that day and the judge’s staff rescheduled the trial for two days later; on the day the trial was to resume, the judge told the assistant that the judge was hospitalized for heart-related tests; after the trial was twice reset due to the judge’s unavailability, a stipulated mistrial order was entered; the judge was absent for two weeks during which the judge was hospitalized for six days; the judge’s heart ailment and the hospitalization were due to alcohol withdrawal; and to justify the judge’s absence, the judge told a reporter that the judge was being treated for and was recovering from a mild heart attack, the judge’s conduct constituted willful misconduct in office. In re Pope, S.Ct. No. 29,778 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Directing secretary to handle traffic docket. — Where a judge took a vacation knowing that the judge would not return in time to handle the judge’s traffic docket; the judge called the judge’s secretary, told the secretary that the judge’s return had been delayed, and instructed the secretary to handle the judge’s traffic docket; the secretary handled the traffic docket and used the judge’s signature stamp to process the docket; and when the other judges, court personnel, and the media learned about what had occurred, the judge reviewed and signed the cases that the judge’s secretary had handled in the judge’s absence, the judge’s conduct constituted willful misconduct in office. In re Griego, S.Ct. No. 30,203 (Filed June 13, 2007) (decided prior to the 2011 recompilation).
Use of judicial position to advance private interest in pending case. — A metropolitan judge who
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initiated ex parte communications with a special commissioner and a district court judge to influence a child placement in a case involving a family member within the third degree of relationship committed willful misconduct in office. In re Gentry, S.Ct. No. 28,986 (Filed June 29, 2005) (decided prior to the 2011 recompilation).
Outside employment. — A full-time magistrate court judge, who was paid a salary as a full-time magistrate and who served as a tribal judge pro tempore for a tribal court at times when the judge was being paid by the state to serve as a magistrate court judge committed willful misconduct in office. In re Martinez, S.Ct. 29,309 (Filed October 19, 2005) (decided prior to the 2011 recompilation).
False statements about judicial disciplinary complaints. — Where, during a radio broadcast debate, a judge made false or misleading statements that no judicial disciplinary complaints had been filed against the judge with the Judicial Standards Commission, the judge committed willful misconduct in office. In re Miller-Byrnes, S.Ct. No. 28,716 (Filed August 31, 2004) (decided prior to the 2011 recompilation).
Personal involvement with and harassment of trial counsel. — Where a judge presided over and took judicial action in cases in which the assistant district attorney appeared on behalf of the state during the time the judge was engaged in a personal relationship with the assistant district attorney; the judge failed to inform all counsel or parties of record of the judge’s relationship with the assistant district attorney in cases where the assistant district attorney appeared before the judge; the judge failed to be patient, dignified and courteous to counsel by making inappropriate remarks to assistant district attorneys about the judge’s rulings in front of defendants, defense counsel, and co-counsel; and in one case, the judge suppressed evidence of a breath test, refused to allow the assistant district attorney to call the officer who administered the breath test to testify, and then taunted the assistant district attorney about not being able to prove the state’s case, the judge committed willful misconduct in office. In re Galvan, S.Ct. No. 28,609 (Filed May 17, 2004) (decided prior to the 2011 recompilation).
Maintaining residence outside judicial district. — A municipal judge who failed to maintain a continuous and significant physical presence at a residence within the municipal limits of the municipality as required by municipal ordinance committed willful misconduct in office. In re Gallegos, S.Ct. No. 27,906 (Filed April 15, 2003) (decided prior to the 2011 recompilation).
Violation of law. — A judge who pled nolo contendere to charges of DWI, no headlamps, and running a stop sign and who was convicted and sentenced for DWI and no headlamps committed willful misconduct in office. In re Cornish, S.Ct. No. 27,252 (Filed May 6, 2002) (decided prior to the 2011 recompilation).
Inappropriate demeanor, interference in pending case and illegal modification of sentence. — Where a judge made inappropriate, age and/or gender-based references to female attorneys who appeared before the judge; after the state lost a six-month rule hearing, the judge threatened the Public Defender’s Office and its employees; the judge told a defendant in a criminal drug case that the defendant was covering up for the defendant’s children and that the defendant could post a property bond with the intention that the State could get rid of the defendant’s house if there were complaints by the defendant’s neighbors; after filing a recusal in a case, the judge became involved in a pretrial conference in the case and testified against a motion filed by the Public Defender’s Office; referred to a female magistrate court judge in an inappropriate, derogatory and gender-based manner; criticized a female attorney for being employed by the Public Defender’s Office; and after the Public Defender’s Office filed a notice of appeal from the judge’s ruling, verbally modified a sentence and order of eligibility by ex parte communication with the monitoring agent, the judge’s conduct constituted willful misconduct in office. In re Vincent, S.Ct. No. 27,266 (Filed March 22, 2002) (decided prior to the 2011 recompilation).
Involvement in friend’s criminal case. — Where a judge became involved in the pending criminal case of a friend by speaking with the arresting state police officer by cellular telephone during the traffic stop and arrest; personally going to the adult detention center and ordered the friend’s release and taking the friend to the judge’s house, and speaking to a registered nurse and asking the nurse to draw an independent blood sample from the friend; and the judge had an alcoholic drink before going to the jail to
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release the friend and may have had the odor of alcohol on the judge’s breath, the judge’s conduct constituted willful misconduct in office. In re Sanchez, S.Ct. No. 25,821 (Filed March 14, 2001) (decided before the 2011 recompilation).
Issuing insufficient funds checks. — Where a judge, on three separate occasions, issued checks in payment of the judge’s debts knowing at the time the checks were issued that there were insufficient funds in or credit with the bank to pay the checks in full upon presentation, the judge’s conduct was willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed May 7, 2001) (decided prior to the 2011 recompilation).
Failure to pay taxes and debts. — Where a judge failed to pay gross receipts taxes for the judge’s private business activities for five consecutive years; failed to timely file state personal income tax returns for three consecutive years; used the facilities and equipment of the probate court for the judge’s private business activities; and failed to pay the county for copying charges incurred at the county clerks’ office for the judge’s private business and gave the county clerk an insufficient funds check to pay for the copying, the judge’s conduct constituted willful misconduct in office. In re Vigil, S.Ct. No. 26,328 (Filed June 13, 2000) (decided prior to the 2011 recompilation).
Control of organization that appeared before judge. — Where a judge had de facto control over a non-profit organization that regularly engaged in proceedings before the judge; the judge personally selected the majority of the board of directors and caused the hiring and firing of directors; the judge’s spouse served as executive director; and the judge allowed the judge’s spouse to use the judge’s chambers and telephone and the judge’s name, title, official stationery, and photograph to be used in solicitation of funds for the organization, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
Director of a DWI school. — Where, as permitted by a municipal ordinance, a municipal judge was the owner and director of a DWI school and had a pecuniary interest in having individuals initially appear before the judge in court and then attend the DWI school, the judge’s conduct violated the Code of Judicial Conduct. In re Rainaldi, 104 N.M. 762, 727 P.2d 70 (1986) (decided prior to the 2011 recompilation).
21-302. Appearance before governmental bodies and consultation with government
officials.
A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an
executive or a legislative body or official, except:
A. in connection with matters concerning the legal system or the administration of justice; or
B. when the judge is acting pro se in a matter involving the judge‘s legal or economic
interests, or when the judge is acting in a fiduciary capacity.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] Judges possess special expertise in the legal system and the administration of justice, and may properly share that expertise with governmental bodies and executive or legislative branch officials. Judges shall not, however, testify about substantive legal issues that may come before them for decision.
[2] For example, it may be necessary for the Chief Justice or judges who have budgetary responsibilities for the courts to provide testimony about budgetary or administrative matters. A judge’s participation in such settings is not prohibited by this rule. In appearing before governmental bodies or consulting with government officials, judges must be mindful that they remain subject to other provisions of this Code, such as Rule 21-103 NMRA, prohibiting judges from using the prestige of office to advance their own or others’ interests, Rule 21-210 NMRA, governing public comment on pending and impending matters, and Rule 21-301(C) NMRA, prohibiting judges from engaging in extrajudicial activities that would
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appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.
[3] In general, it would appear to be an unnecessary and unfair burden to prohibit judges from appearing before governmental bodies or consulting with government officials on matters that are likely to affect them as private citizens, such as zoning proposals affecting their real property. In engaging in such activities, however, judges must not refer to their judicial positions, and must otherwise exercise caution to avoid using the prestige of judicial office.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Control of an organization that appeared before the judge. — Where a judge had de facto control over a non-profit organization that regularly engaged in proceedings before the judge; the judge personally selected the majority of the board of directors and caused the hiring and firing of directors; the judge’s spouse served as executive director; and the judge allowed the judge’s spouse to use the judge’s chambers and telephone and the judge’s name, title, official stationary, and photograph to be used in solicitation of funds for the organization, the judge’s conduct constituted willful misconduct in office. In re Castellano, 119 N.M. 140, 889 P.2d 175 (1995) (decided prior to the 2011 recompilation).
21-303. Testifying as a character witness.
A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory
proceeding or otherwise vouch for the character of a person in a legal proceeding, except when
duly summoned.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Committee commentary. —
[1] A judge who, without being subpoenaed, testifies as a character witness lends the prestige of judicial office to advance the interests of another. See Rule 21-103 NMRA. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-304. Appointments to governmental positions.
A. A judge shall not accept appointment to a governmental committee, board, commission, or
other governmental position, unless it is required by law, or is one that concerns the law, the
legal system, or the administration of justice.
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B. A judge may represent his or her country, state, or locality on ceremonial occasions or in
connection with historical, educational, or cultural activities. Such representation does not
constitute acceptance of a government position.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Committee commentary. —
[1] Rule 21-304 NMRA implicitly acknowledges the value of judges accepting appointments to entities that concern the law, the legal system, or the administration of justice. Even in such instances, however, a judge should assess the appropriateness of accepting an appointment, paying particular attention to the subject matter of the appointment and the availability and allocation of judicial resources, including the judge’s time commitments, and giving due regard to the requirements of the independence and impartiality of the judiciary.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-305. Use of nonpublic information.
A judge shall not intentionally disclose or use nonpublic information acquired in a judicial
capacity for any purpose unrelated to the judge‘s judicial duties.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] In the course of performing judicial duties, a judge may acquire information of commercial or other value that is unavailable to the public. The judge must not reveal or use such information for personal gain or for any purpose unrelated to his or her judicial duties.
[2] This rule is not intended, however, to affect a judge’s ability to act on information as necessary to protect the health or safety of any member of the public if consistent with other provisions of this Code.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-306. Affiliation with discriminatory organizations.
A. A judge shall not hold membership in any organization that practices invidious
discrimination on the basis of race, religion, color, national origin, ethnicity, ancestry, sex,
sexual orientation, gender identity, marital status, spousal affiliation, socioeconomic status,
political affiliation, age, physical or mental handicap, or serious medical condition.
B. A judge shall not use the benefits or facilities of an organization if the judge knows or
should know that the organization practices invidious discrimination on one or more of the bases
identified in Paragraph A.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
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[1] A judge’s public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge’s membership in an organization that practices invidious discrimination creates the perception that the judge’s impartiality is impaired.
[2] An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, color, national origin, ethnicity, ancestry, sex, sexual orientation, gender identity, marital status, spousal affiliation, socioeconomic status, political affiliation, age, physical or mental handicap, or serious medical condition, persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization’s current membership rolls, but rather, depends on how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.
[3] When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.
[4] A judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this rule.
[5] This rule does not apply to national or state military service.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-307. Participation in educational, religious, charitable, fraternal, or civic organizations
and activities.
A. Subject to the requirements of Rule 21-301 NMRA, a judge may participate in activities
sponsored by organizations or governmental entities concerned with the law, the legal system, or
the administration of justice, and those sponsored by or on behalf of educational, religious,
charitable, fraternal, or civic organizations not conducted for profit including, but not limited to,
the following activities:
(1) assisting such an organization or entity in planning related to fund-raising, and
participating in the management and investment of the organization‘s or entity‘s funds;
(2) soliciting contributions for such an organization or entity, but only from members of the
judge‘s family, or from judges over whom the judge does not exercise supervisory or appellate
authority;
(3) appearing or speaking at, receiving an award or other recognition at, being featured on the
program of, and permitting his or her title to be used in connection with an event of such an
organization or entity. A judge shall not personally or expressly solicit financial support during
the event;
(4) making recommendations to such a public or private fund-granting organization or entity
in connection with its programs and activities, but only if the organization or entity is concerned
with the legal system, or the administration of justice; and
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(5) serving as an officer, director, trustee, or nonlegal advisor of such an organization or
entity, unless it is likely that the organization or entity:
(a) will be engaged in proceedings that would ordinarily come before the judge; or
(b) will frequently be engaged in adversary proceedings in the court of which the judge is a
member, or in any court subject to the appellate jurisdiction of the court of which the judge is a
member.
B. A judge may encourage lawyers to provide pro bono publico legal services.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] The activities permitted by Paragraph (A) generally include those sponsored by or undertaken on behalf of public or private not-for-profit educational institutions, and other not-for-profit organizations, including law-related charitable, and other organizations.
[2] A judge should consider whether the membership and purposes of the organization, or the nature of the judge’s participation in or association with the organization, would conflict with the judge’s obligation to refrain from activities that reflect adversely upon a judge’s independence, integrity, and impartiality.
[3] Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of Paragraph (A)(3). Too strict a rule forbidding a judge’s attendance at or participation in community events would discourage judges from participating in their communities and interacting with citizens and neighbors, a result that would isolate judges from the public they serve and would be detrimental to encouraging public support for the judiciary. At the same time, there is a potential for a judge’s presence as a major participant at a fund-raising event to exert undue influence on persons to contribute to the event. Paragraph (A)(3) strikes a balance by recognizing a de minimis level of participation that is permitted and encouraged. It is generally permissible for a judge to serve as an usher or a food server or preparer, to be part of a theatrical or musical performance with others, to introduce speakers or present awards and to perform similar functions, at fund-raising events. Such activities are not solicitation and do not present an element of coercion or abuse the prestige of judicial office. A judge must be cognizant of the requirements of Rule 21-103 NMRA in connection with fund-raising activities for educational, religious, charitable, fraternal, or civic organizations and activities.
[4] A judge's title or name shall not appear on a letter that solicits funds or membership.
[5] In addition to appointing lawyers to serve as counsel for indigent parties in individual cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono publico legal services, if in doing so the judge does not employ coercion, or abuse the prestige of judicial office. Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the preceding table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-308. Appointments to fiduciary positions.
A. A judge shall not accept appointment to serve in a fiduciary position, such as executor,
administrator, trustee, guardian, attorney in fact, or other personal representative, except for the
estate, trust, or person of a member of the judge‘s family, and then only if such service will not
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interfere with the proper performance of judicial duties.
B. A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be
engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or
ward becomes involved in adversary proceedings in the court on which the judge serves, or one
under its appellate jurisdiction.
C. A judge acting in a fiduciary capacity shall be subject to the same restrictions on engaging
in financial activities that apply to a judge personally.
D. If a person who is serving in a fiduciary position becomes a judge, he or she must comply
with this rule as soon as reasonably practicable, but in no event later than one year after
becoming a judge.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] A judge should recognize that other restrictions imposed by this code may conflict with a judge’s obligations as a fiduciary; in such circumstances, a judge should resign as fiduciary. For example, serving as a fiduciary might require frequent disqualification of a judge under Rule 21-211 NMRA because a judge is deemed to have an economic interest in shares of stock held by a trust if the amount of stock held is more than de minimis.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-309. Service as arbitrator or mediator.
A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from
the judge‘s official duties unless expressly authorized by law.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] This rule does not prohibit a judge from participating in arbitration, mediation, or settlement conferences performed as part of assigned judicial duties. Rendering dispute resolution services apart from those duties, whether or not for economic gain, is prohibited unless it is expressly authorized by law.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-310. Practice of law.
A judge shall not practice law unless with the written approval of the Supreme Court while on
unpaid leave. A judge may act pro se and may, without compensation, give legal advice to and
draft or review documents for a member of the judge‘s family, but is prohibited from serving as
the family member‘s lawyer in any forum.
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[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] A judge may act pro se in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with governmental bodies. A judge must not use the prestige of office to advance the judge’s personal or family interests. See Rule 21-103 NMRA.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
Pro se appearance as a party defendant did not constitute the practice of law. — A state court judge’s pro se appearance as a party defendant in a law suit pending before the federal district court did not constitute the practice of law. United States v. Martinez, 101 N.M. 423, 684 P.2d 509 (1984) (decided prior to the 2011 recompilation).
21-311. Financial or business activities.
A. A judge may hold and manage investments of the judge and members of the judge‘s
family.
B. A judge shall not serve as an officer, director, manager, general partner, advisor, or
employee of any business entity except that a judge may manage or participate in:
(1) a business closely held by the judge or members of the judge‘s family; or
(2) a business entity primarily engaged in investment of the financial resources of the judge or
members of the judge‘s family.
C. A judge shall not engage in financial activities permitted under Paragraphs A and B if
they:
(1) will interfere with the proper performance of judicial duties;
(2) will lead to frequent disqualification of the judge;
(3) will involve the judge in frequent transactions or continuing business relationships with
lawyers or other persons likely to come before the court on which the judge serves;
(4) may reasonably be perceived to exploit the judge‘s judicial position; or
(5) will result in violation of other provisions of this Code.
D. No full-time municipal, magistrate, metropolitan, district, or appellate judge may hold any
other judicial position, elected or appointed.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] Judges are generally permitted to engage in financial activities, including managing real estate and other investments for themselves or for members of their families. Participation in these activities, like participation in other extrajudicial activities, is subject to the requirements of this Code. For example, it would be improper for a judge to spend so much time on business activities that it interferes with or
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unduly burdens the performance of judicial duties. See Rule 21-201 NMRA. Similarly, it would be improper for a judge to use his or her official title or appear in judicial robes in business advertising, or to conduct his or her business or financial affairs in such a way that disqualification is frequently required. See Rules 21-103 and 21-211 NMRA.
[2] As soon as is practicable without serious financial detriment, the judge must divest himself or herself of investments and other financial interests that might require frequent disqualification or otherwise violate this rule.
[3] When a judge acquires information in a judicial capacity, such as material contained in filings with the court, that is not yet generally known, the judge must not use the information for private gain.
[4] A judge must avoid financial and business dealings that involve the judge in frequent transactions or continuing business relationships with persons likely to come either before the judge personally or before other judges on the judge's court. In addition, a judge should discourage members of the judge's family from engaging in dealings that would reasonably appear to exploit the judge's judicial position. This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification. With respect to affiliation of relatives of judge with law firms appearing before the judge, see Rule 21-211 NMRA relating to disqualification.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-312. Compensation for extrajudicial activities.
A. A judge may accept reasonable compensation for extrajudicial activities permitted by this
Code or other law unless such acceptance would appear to a reasonable person to undermine the
judge‘s independence, integrity, or impartiality.
B. Conflicting compensated activities. A judge shall not hold any other paid position,
judicial or otherwise, that conflicts with the hours and duties the judge is required to perform for
every judicial position. A judge shall devote the number of hours that is required by any judicial
position held. In no event shall other paid employment or compensable activity hours be
performed simultaneously.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. —
[1] A judge is permitted to accept honoraria, stipends, fees, wages, salaries, royalties, or other compensation for speaking, teaching, writing, and other extrajudicial activities, provided the compensation is reasonable and commensurate with the task performed. The judge should be mindful, however, that judicial duties must take precedence over other activities. See Rule 21-201 NMRA.
[2] Compensation derived from extrajudicial activities may be subject to public reporting. See Rule 21-315 NMRA.
[3] No judge may receive any remuneration, including a gratuity, for performing a marriage ceremony. For reasonable travel expenses, see Rule 21-314 NMRA.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
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ANNOTATIONS
JUDICIAL REPRIMANDS
Outside employment. — A full-time magistrate court judge, who was paid a salary as a full-time magistrate and who served as a tribal judge pro tempore for a tribal court at times when the judge was being paid by the state to serve as a magistrate court judge committed willful misconduct in office. In re Martinez, S.Ct. 29,309 (Filed October 19, 2005) (decided prior to the 2011 recompilation).
Director of a DWI school. — Where, as permitted by a municipal ordinance, a municipal judge was the owner and director of a DWI school and had a pecuniary interest in having individuals initially appear before the judge in court and then attend the DWI school, the judge’s conduct violated the Code of Judicial Conduct. In re Rainaldi, 104 N.M. 762, 727 P.2d 70 (1986) (decided prior to the 2011 recompilation).
21-313. Acceptance of gifts, loans, bequests, benefits, or other things of value.
A. A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if
acceptance is prohibited by law or would appear to a reasonable person to undermine the judge‘s
independence, integrity, or impartiality, or if the source is a party or other person, including a
lawyer, who has come or is likely to come before the judge, or whose interests have come or are
likely to come before the judge.
B. Unless otherwise prohibited by law, or by Paragraph A, a judge may accept the following:
(1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards;
(2) gifts, loans, bequests, benefits, or other things of value from friends, relatives, or other
persons, including lawyers, whose appearance or interest in a proceeding pending or impending
before the judge would in any event require disqualification of the judge under Rule 21-211
NMRA;
(3) ordinary social hospitality;
(4) commercial or financial opportunities and benefits, including special pricing and
discounts, and loans from lending institutions in their regular course of business, if the same
opportunities and benefits or loans are made available on the same terms to similarly situated
persons who are not judges;
(5) rewards and prizes given to competitors or participants in random drawings, contests, or
other events that are open to persons who are not judges;
(6) scholarships, fellowships, and similar benefits or awards, if they are available to similarly
situated persons who are not judges, based upon the same terms and criteria;
(7) books, magazines, journals, audiovisual materials, and other resource materials supplied
by publishers on a complimentary basis for official use;
(8) gifts, awards, or benefits associated with the business, profession, or other separate activity
of a spouse, a domestic partner, or other family member of a judge residing in the judge‘s
household, but that incidentally benefit the judge;
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(9) gifts incident to a public testimonial; or
(10) invitations to the judge and the judge‘s spouse, domestic partner, or guest to attend
without charge:
(a) an event associated with a bar-related function or other activity relating to the law, the
legal system, or the administration of justice; or
(b) an event associated with any of the judge‘s educational, religious, charitable, fraternal, or
civic activities permitted by this Code, if the same invitation is offered to non-judges who are
engaged in similar ways in the activity as is the judge.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Committee commentary. —
[1] Whenever a judge accepts a gift or other thing of value without paying fair market value, there is a risk that the benefit might be viewed as intended to influence the judge’s decision in a case. Rule 21-313 NMRA imposes restrictions upon the acceptance of such benefits, according to the magnitude of the risk. Paragraph (B) identifies circumstances in which the risk that the acceptance would appear to undermine the judge’s independence, integrity, or impartiality is low, and explicitly provides that such items need not be publicly reported.
[2] Gift-giving between friends and relatives is a common occurrence, and ordinarily does not create an appearance of impropriety or cause reasonable persons to believe that the judge’s independence, integrity, or impartiality has been compromised. In addition, when the appearance of friends or relatives in a case would require the judge’s disqualification under Rule 21-211 NMRA, there would be no opportunity for a gift to influence the judge’s decision making. Paragraph (B)(2) places no restrictions upon the ability of a judge to accept gifts or other things of value from friends or relatives under these circumstances, and does not require public reporting.
[3] Businesses and financial institutions frequently make available special pricing, discounts, and other benefits, either in connection with a temporary promotion or for preferred customers, based upon longevity of the relationship, volume of business transacted, and other factors. A judge may freely accept such benefits if they are available to the general public, or if the judge qualifies for the special price or discount according to the same criteria as are applied to persons who are not judges. As an example, loans provided at generally prevailing interest rates are not gifts, but a judge could not accept a loan from a financial institution at below-market interest rates unless the same rate was being made available to the general public for a certain period of time or only to borrowers with specified qualifications that the judge also possesses.
[4] Rule 21-313 NMRA applies only to acceptance of gifts or other things of value by a judge. Nonetheless, if a gift or other benefit is given to the judge’s spouse, domestic partner, or member of the judge’s family residing in the judge’s household, it may be viewed as an attempt to evade Rule 21-313 NMRA and influence the judge indirectly. Where the gift or benefit is being made primarily to such other persons, and the judge is merely and incidental beneficiary, this concern is reduced. A judge should, however, remind family and household members of the restrictions imposed upon judges, and urge them to take these restrictions into account when making decisions about accepting such gifts or benefits.
[5] Rule 21-313 NMRA does not apply to contributions to a judge’s campaign for judicial office. Such contributions are governed by other rules of this Code, including Rules 21-403 and 21-404 NMRA.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
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ANNOTATIONS
Acceptance of gratuity for marriage ceremony. — Except for municipal judges, a judge may not accept a gratuity in connection with the performance of a marriage ceremony without violating the New Mexico Constitution. 1991 Op. Att’y Gen. No. 91-09 (opinion rendered prior to the 2011 recompilation).
21-314. Reimbursement of expenses and waivers of fees and charges.
A. Unless otherwise prohibited by Rules 21-301 and 21-313A NMRA or other law, a judge
may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or
other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition,
and similar items, from sources other than the judge‘s employing entity, if the expenses or
charges are associated with the judge‘s participation in extrajudicial activities permitted by this
Code.
B. Reimbursement of expenses for necessary travel, food, lodging, or other incidental
expenses shall be limited to the actual costs reasonably incurred by the judge and, when
appropriate to the occasion, by the judge‘s spouse, domestic partner, or guest.
C. A judge who accepts reimbursement of expenses or waivers or partial waivers of fees or
charges on behalf of the judge or the judge‘s spouse, domestic partner, or guest shall publicly
report such acceptance as required by Rule 21-315 NMRA.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Committee commentary. —
[1] Educational, civic, religious, fraternal, and charitable organizations often sponsor meetings, seminars, symposia, dinners, awards ceremonies, and similar events. Judges are encouraged to attend educational programs, as both teachers and participants, in law-related and academic disciplines, in furtherance of their duty to remain competent in the law. Participation in a variety of other extrajudicial activity is also permitted and encouraged by this Code.
[2] Not infrequently, sponsoring organizations invite certain judges to attend seminars or other events on a fee-waived or partial-fee-waived basis, and sometimes include reimbursement for necessary travel, food, lodging, or other incidental expenses. A judge’s decision to accept reimbursement of expenses or a waiver or partial waiver of fees or charges in connection with these or other extrajudicial activities must be based upon an assessment of all the circumstances. The judge must undertake a reasonable inquiry to obtain the information necessary to make an informed judgment about whether acceptance would be consistent with the requirements of this Code.
[3] A judge must assure himself or herself that acceptance of reimbursement or fee waivers would not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. The factors that a judge should consider when deciding whether to accept reimbursement or a fee waiver for attendance at a particular activity include:
(a) whether the sponsor is an accredited educational institution or bar association rather than a trade association or a for-profit entity;
(b) whether the funding comes largely from numerous contributors rather than from a single entity and is earmarked for programs with specific content;
(c) whether the content is related or unrelated to the subject matter of litigation pending or impending before the judge, or to matters that are likely to come before the judge;
(d) whether the activity is primarily educational rather than recreational, and whether the costs of the event are reasonable and comparable to those associated with similar events sponsored by the judiciary,
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bar associations, or similar groups;
(e) whether information concerning the activity and its funding sources is available upon inquiry;
(f) whether the sponsor or source of funding is generally associated with particular parties or interests currently appearing or likely to appear in the judge’s court, thus possibly requiring disqualification of the judge under Rule 21-211 NMRA;
(g) whether differing viewpoints are presented; and
(h) whether a broad range of judicial and nonjudicial participants are invited, whether a large number of participants are invited, and whether the program is designed specifically for judges.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-315. Reporting requirements.
A. A judge shall publicly report the amount or value of:
(1) compensation received for extrajudicial activities as permitted by Rule 21-312 NMRA;
and
(2) reimbursement of expenses and waiver of fees or charges permitted by Rule 21-314A
NMRA, unless the amount of reimbursement or waiver, alone or in the aggregate with other
reimbursements or waivers received from the same source in the same calendar year, does not
exceed five hundred dollars ($500.00).
B. When public reporting is required by Paragraph A, a judge shall report the date, place, and
nature of the activity for which the judge received any compensation; the description of any
loan, bequest, benefit, or other thing of value accepted; and the source of reimbursement of
expenses or waiver or partial waiver of fees or charges.
C. The public report required by Paragraphs A and B shall be made at least annually.
D. Reports made in compliance with this rule shall be filed as public documents in the office
of the clerk of the court on which the judge serves or other office designated by law, and, when
technically feasible, posted by the court or office personnel on the court‘s website.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-400. Canon 4.
A judge or candidate for judicial office shall not engage in political or campaign activity that is
inconsistent with the independence, integrity, or impartiality of the judiciary.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Committee commentary. —
[1] The public’s perception of a fair and impartial judiciary may be greatly affected by the manner in
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which judges or candidates for judicial office comport themselves. This Canon imposes narrowly tailored restrictions upon the political and campaign activities of all judges and judicial candidates, taking into account the various methods of selecting judges. Campaigns for judicial office must be conducted differently from campaigns for other offices. The narrowly drafted restrictions upon political and campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct campaigns that provide voters with sufficient information to permit them to distinguish between candidates and make informed electoral choices.
[2] Even when subject to public election, a judge plays a role different from that of other elected officials. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free from political influence and political pressure. So too, the public’s perception of a fair and impartial judiciary may be greatly affected by the manner in which judges or candidates for judicial office comport themselves. This canon imposes narrowly tailored restrictions upon the political and campaign activities of all judges and judicial candidates, taking into account the various methods of selecting judges.
[3] When a person becomes a judicial candidate, this Canon becomes applicable to his or her conduct.
[4] The Code organizes Canon 4 by the political status of the judge, that is, whether the judge is or is not a current candidate for judicial office. Rule 21-401 NMRA addresses the limitations on the political activities of judges generally, and who are not currently running for judicial office. Rule 21-402 NMRA establishes the boundaries for political and campaign activities that circumscribe the conduct of judges and judicial candidates engaged in a partisan, non-partisan, or retention election. Rule 21-403 NMRA addresses the limitations on activities of candidates seeking appointment to judicial office. Rule 21-404 NMRA requires that candidates for judicial office create campaign committees and establishes the rules for those campaign committees. Rule 21-405 NMRA addresses the activities of judges who either become candidates for or seek appointment to a non-judicial office. Finally, Rule 21-406 NMRA creates the mechanism for investigating and resolving violations of the Code, including challenges for violations of the Code in election campaigns.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-401. Political activity and elections for judges generally, and who are not currently
running in either a partisan, non-partisan, or retention election.
A. A judge may engage in political activity on behalf of the legal system, the administration of
justice, measures to improve the law and as expressly authorized by the law or by this Code.
B. A judge may, unless prohibited by law, attend non-fund raising political gatherings.
C. A judge shall not, except as permitted by Rule 21-402 NMRA,
(1) act as a leader or hold office in a political organization;
(2) publicly endorse or publicly oppose
(a) a candidate for public office, or
(b) a ballot issue unrelated to the administration of justice or the legal system;
(3) make speeches on behalf of a political organization;
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(4) solicit funds for, pay an assessment to, or make a contribution to a political organization or
candidate;
(5) knowingly, or with reckless disregard for the truth, make any false or misleading
statement;
(6) make any statement that would reasonably be expected to affect the outcome or impair the
fairness of a matter pending or impending in any court; or
(7) in connection with cases, controversies, or issues that are likely to come before the court,
make pledges, promises, or commitments that are inconsistent with the impartial performance of
the adjudicative duties of judicial office.
D. A metropolitan, district, or appellate court judge shall not
(1) purchase tickets for or attend dinners or other fund-raising events sponsored by a political
organization or a candidate for public office; or
(2) publicly identify himself or herself as a candidate of a political organization.
E. A judge shall take reasonable measures to ensure that other persons do not undertake, on
behalf of the judge, any activities prohibited under this Code.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.] Committee commentary. — Participation in Political Activities
[1] Public confidence in the independence and impartiality of the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence. Although judges and judicial candidates may register to vote as members of a political party, they are prohibited by Paragraph (C)(1) from assuming leadership roles in political organizations, such as ward chair or delegate to a party convention. Non-candidates may attend political events, but must be conscious that a judge may abuse the prestige of judicial office by being present at the event and should consider whether the interests of the judiciary would best be served by not attending. A judge should not attend events organized for the sole purpose of raising money for a political campaign.
[2] Paragraphs (C)(2) and (C)(3) prohibit judges and judicial candidates from making speeches on behalf of political organizations or publicly endorsing or opposing candidates for public office, respectively, to prevent them from lending the prestige of judicial office to advance the interests of others. See Rule 21-103 NMRA. These rules do not prohibit candidates from campaigning on their own behalf. See Rule 21-402(A)(7) NMRA.
[3] Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no "family exception" to the prohibition in Paragraph (C)(2)(a) against a judge or judicial candidate publicly endorsing candidates for public office. A judge or judicial candidate must not become involved in, or publicly associated with, a family member’s political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that the judge or judicial candidate endorse any family member’s candidacy or other political activity.
[4] Judges and judicial candidates retain the right to participate in the political process as voters in all local, state, and government elections. Statements and Comments Made during a Campaign for Judicial Office (see also Rule 21-402 NMRA); Pledges, Promises, or Commitments Inconsistent with Impartial Performance of the Adjudicative Duties of Judicial Office.
[5] Paragraph (C)(9) (and Rule 21-402(A)(2)(a)) make applicable to both judges and judicial candidates the prohibition that applies to judges in Rule 21-201(B) NMRA, relating to pledges, promises, or
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commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.
[6] The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine if a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result. Pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited. When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.
[7] The Code does not prohibit a judge in the exercise of administrative functions from engaging in planning and other official activities with members of the executive and legislative branches of government. See Rule 21-312 NMRA.
[8] A judge is prohibited from publicly endorsing a judicial candidate or candidate for public office, e.g., adding the judge’s name to a list of supporters or publicly recommending the judge’s election or appointment. Private endorsements, however, are permitted. A judge or judicial candidate is not prohibited from privately expressing the judge's or judicial candidate's views on judicial candidates or other candidates for public office.
[9] Paragraph (D) of this rule exempts magistrate, municipal, and probate judges from the prohibitions identified in this paragraph.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
JUDICIAL REPRIMANDS
Endorsement of political candidate. — Where a magistrate court judge authorized the use of the judge’s name for an endorsement of a candidate for reelection as mayor of a municipality and the endorsement, which was published in a local newspaper, did not explicitly identify the judge as a magistrate court judge, the judge violated the Code of Judicial Conduct. In re Vincent, 2007-NMSC-056, 143 N.M. 56, 172 P.3d 605 (decided prior to the 2011 recompilation).
False statements about judicial disciplinary complaints. — Where, during a radio broadcast debate, a judge made false or misleading statements that no judicial disciplinary complaints had been filed against the judge with the Judicial Standards Commission, the judge committed willful misconduct in office. In re. Miller-Byrnes, S.Ct. No. 28,716 (Filed August 31, 2004) (decided prior to the 2011 recompilation).
21-402. Political and campaign activities of judicial candidates in public elections.
A. Candidates for election to judicial office. A judicial candidate in a partisan, non-
partisan, or retention election,
(1) shall
(a) act at all times in a manner consistent with the independence, integrity, and impartiality of
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the judiciary;
(b) comply with all applicable election, election campaign, and election campaign fund-
raising laws and regulations;
(c) review and approve the content of all non-financial campaign statements and materials
produced by the candidate or his or her campaign committee, as authorized by Rule 21-404
NMRA, before their dissemination;
(d) take reasonable measures to ensure that other persons do not undertake on behalf of the
candidate activities, other than those described in Rule 21-404 NMRA, that the candidate is
prohibited from doing under these rules; and
(e) shall, if intending to raise or expend funds in excess of one thousand dollars ($1,000),
establish a campaign committee pursuant to the provisions of Rule 21-404 NMRA.
(2) shall not
(a) seek to discover who has contributed to the campaign of either the judge or the judge‘s
opponent;
(b) with respect to cases, controversies or issues that are likely to come before the court, make
pledges, promises, or commitments that are inconsistent with the impartial performance of the
adjudicative duties of the office; or
(c) misrepresent the candidate's or the candidate's opponent's identity, qualifications, present
position or other material fact;
(3) may
(a) speak on behalf of his or her candidacy through any medium, including, but not limited to,
advertisements, websites, or other campaign literature;
(b) attend or purchase tickets for dinners or other events sponsored by a political organization
or a candidate for public office;
(c) contribute to a political organization;
(d) use advertising that does not contain any misleading contents, and does not, in nonpartisan
elections, contain any reference to the candidate's affiliation with a political party; and
(e) respond to personal attacks or attacks on the candidate's record as long as the response
does not violate Subparagraph (6) of Paragraph C of Rule 21-401 NMRA.
B. Contributions creating appearance of impropriety. Candidates for judicial office in
both partisan and retention elections shall refrain from campaign fund-raising activity which has
the appearance of impropriety, and shall not accept any contribution that creates an appearance
of impropriety.
C. Solicitation for other campaigns and candidates. Subject to the restrictions of Rule 21-
404 NMRA and Paragraphs A and E of Rule 21-402 NMRA,
(1) candidates in both partisan and retention elections for judicial office may solicit
contributions for their own campaigns, but shall not solicit funds for any other political
campaign, or for any candidate for any other office; and
(2) judicial candidates may run for election as part of a slate of judicial candidates and may
participate in joint fund-raising events with other judicial candidates.
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D. Unopposed candidates in partisan and non-partisan elections. Candidates in partisan
and non-partisan elections for judicial office who have a campaign fund, but who are unopposed
or become unopposed in the campaign, shall return all unused and uncommitted campaign funds
pro rata to the contributors of the funds, or donate the funds to a charitable organization, or to the
State of New Mexico, as the candidate may choose, with disbursement of such funds to occur
within thirty (30) days after the absence of opposition becomes known. This paragraph does not
apply to retention elections.
E. Contributions by attorneys and litigants. If a case is pending before any candidate for
the judicial office being contested, restrictions of this paragraph apply to all candidates for that
office. Candidates for judicial office, in both partisan and retention elections, shall not personally
solicit or personally accept campaign contributions from any attorney, or from any litigant in a
case pending before the candidate. Contributions from attorneys and litigants shall be made only
to a campaign committee, and are subject to all the requirements of this rule. Campaign
committees may solicit contributions from attorneys. Campaign committees shall not knowingly
solicit a contribution from a litigant whose case is then pending before the candidate. Campaign
committees shall not disclose to the judge or candidate the identity or source of any funds raised
by the committee.
F. A judicial candidate in a partisan public election. A judicial candidate in a partisan
election may
(1) identify himself or herself as a candidate of a partisan political organization; and
(2) seek, accept, and use endorsements from a partisan political organization.
G. A judicial candidate in a retention or non-partisan election. A judicial candidate in a
retention or non-partisan election may
(1) identify himself or herself as a candidate but shall not identify himself or herself with any
specific partisan political organization; and
(2) seek, accept, and use endorsements from a partisan political organization.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Committee commentary. —
[1] This rule restricts contributions for campaigns for judicial office to sources and amounts that do not create an appearance of impropriety. Candidates for judicial office may solicit contributions for their own campaigns, within the restrictions of this rule, but not for the campaigns for other candidates or offices. Candidates for election to judicial office are required to create campaign committees to solicit and accept contributions, to solicit public support, and to receive, manage, and disburse all campaign contributions. Each candidate must instruct the campaign committee to solicit or accept only those contributions that are reasonable under the circumstances, and that meet the requirements of this rule.
[2] Attorneys and litigants have the right as citizens to participate in the electoral process of public officers, including judges, and have the right to support and make contributions to candidates for judicial office. Therefore, campaign contributions by attorneys and litigants are permitted, within the restrictions of this rule. However, campaign contributions from litigants with cases pending before any candidate for the judicial office being contested may not be knowingly solicited or accepted by any candidate for that office or that candidate’s campaign committee. Once a campaign committee determines it has received a contribution from a litigant with a case pending before the judicial candidate, the contribution must be returned.
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[3] Although Paragraph E does not forbid a judicial candidate’s campaign from accepting a contribution from a lawyer in a firm that has a pending case, a judicial candidate’s campaign committee should not accept the contribution if accepting such a contribution creates an appearance of impropriety. For example, a large contribution from a law firm with many lawyers may create the appearance of impropriety as might a smaller contribution from a firm with only two or three lawyers. These examples serve only to illustrate the point that campaign committees should exercise particular vigilance when accepting contributions from lawyers whose firm has a pending case.
[4] Campaign committees established under this rule should attempt to manage campaign finances responsibly, avoiding deficits that may necessitate post-election fund-raising.
[5] Paragraph A(3)(a) through (e) permit judicial candidates in public elections to engage in some political and campaign activities otherwise prohibited by Rule 21-401 NMRA. A candidate may begin to engage in activities permitted under Rule 21-401 NMRA before the next applicable electoral event, such as a primary election, or as soon as the candidate makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes, or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office.
[6] Despite Paragraph A(3)(a) through (e), judicial candidates for public election remain subject to many of the same provisions as are contained in Rule 21-401 NMRA. For example, a candidate continues to be prohibited from soliciting funds for a political organization, knowingly making false or misleading statements during a campaign, or making certain promises, pledges, or commitments related to future adjudicative duties.
[7] In partisan public elections for judicial office, a candidate may be nominated by, affiliated with, or otherwise publicly identified or associated with a political organization, including a political party. This relationship may be maintained throughout the period of the public campaign, and may include use of political party or similar designations on campaign literature and on the ballot. A candidate for judicial office does not publicly endorse another candidate for public office by having that candidate's name on the same ticket, or by participating in joint fund-raising with other judicial candidates, or by running for election as part of a slate of judicial candidates.
[8] Judicial candidates are permitted to attend or purchase tickets for dinners and other events sponsored by political organizations.
[9] Although judicial candidates in nonpartisan public elections are prohibited from running on a ticket or slate associated with a political organization, they may group themselves into slates or other alliances to conduct their campaigns more effectively.
[10] A judicial candidate may make campaign promises related to judicial organization, administration, and court management, such as a promise to dispose of a backlog of cases, start court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also pledge to take action outside the courtroom, such as working toward an improved jury selection system, or advocating for more funds to improve the physical plant and amenities of the courthouse.
[11] Judicial candidates may receive questionnaires or requests for interviews from the media and from issue advocacy or other community organizations that seek to learn their views on disputed or controversial legal or political issues. Paragraph A(2)(b) does not specifically address judicial responses to such inquiries. Depending upon the wording and format of such questionnaires, candidates’ responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way. To avoid violating Paragraph A(2)(b), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. Candidates who do not respond may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate’s independence or impartiality, or that it might lead to frequent disqualification. See Rule 21-211 NMRA.
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[12] Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their campaign committees. Rule 21-401(C)(5) NMRA obligates judges and judicial candidates and their committees to refrain from making statements that are false or misleading, or that omit facts necessary to make the communication considered as a whole not materially misleading.
[13] Judicial candidates are sometimes the subject of false, misleading, or unfair allegations made by opposing candidates, third parties, or the media. For example, false or misleading statements might be made regarding the identity, present position, experience, qualifications, or judicial rulings of a candidate. In other situations, false or misleading allegations may be made that bear upon a candidate’s integrity or fitness for judicial office. As long as the candidate does not violate Paragraphs (C)(3) (prohibiting speeches on behalf of a political organization), (C)(6) (prohibiting any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter impending or pending in any court), or (C)(7) (prohibiting the making of pledges or promises in connection with matters likely to come before the court that are inconsistent with the impartial performance of judicial duties) of Rule 21-401 NMRA, the candidate may respond directly and make a factually accurate public response. In addition, a judicial candidate has recourse to the complaint procedures of the Fair Judicial Elections Committee of the State Bar. In extreme cases, when there may have been a violation of the Code of Judicial Conduct, a judicial candidate may proceed under Rule 21-406 NMRA of this Code.
[14] In addition, if a judge knows that an independent third party has made unwarranted attacks on a candidate’s opponent, the candidate should disavow the attacks and request the third party to cease and desist. When false information concerning a judicial candidate is made public, a judge or another judicial candidate having knowledge of the facts is not prohibited from making the facts public. Subject to Paragraph (C)(6) of Rule 21-401 NMRA (prohibiting any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter impending or pending in any court), a judicial candidate is permitted to respond directly to false, misleading, or unfair allegations made against him or her during a campaign. It is, however, preferable for someone else to respond if the allegations relate to a pending case.
[15] A candidate for elective judicial office is not prohibited from retaining during candidacy a public office such as district attorney, which is not an office in a "political organization."
[16] Candidates for judicial office should consider setting a limit on any individual contribution for purposes of determining whether contribution above that limit creates an appearance of impropriety or would otherwise undermine the public’s confidence in the integrity and independence of the judiciary. Judicial candidates may be informed about the total amounts contributed to the campaign in order to make informed budgeting decisions relating to the campaign. Under most circumstances, however, judicial candidates should not be informed about the specific details of individual contributions.
[17] Candidates for judicial offices may, through a campaign committee, solicit endorsements of support, including endorsements from attorneys. The judicial candidate may not solicit endorsements and should not be informed about the identity of individual attorney supporters.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
ANNOTATIONS
Judge cannot simultaneously run for separate judicial positions. — Paragraph B of former Rule 21-700 NMRA indicates that a judge may be nominated or run for another judicial office without resigning. It does not, however, state that a judge may simultaneously run for separate judicial positions. 1990 Op. Att’y Gen. No. 90-04 (opinion rendered prior to the 2011 recompilation).
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JUDICIAL REPRIMANDS
Making campaign promise to provide assistance if elected. — Where, during the time a judge was a candidate for magistrate court judge, the judge told a landlord that the judge would help if the landlord had a problem in court; when the judge learned that the landlord was having trouble with a tenant, the judge reviewed the lease and advised the landlord to file suit after the judge was elected; the judge also explained how the landlord could excuse the other magistrate court judges to make sure the judge heard the case; after the judge was elected, the landlord filed suit and excused the other magistrate court judges; and at a hearing on the case, the judge became impatient with the landlord and filed a recusal, the judge violated the Code of Judicial Conduct, subjecting the judge to removal from office. In re Rodella, 2008-NMSC-050, 144 N.M. 617, 190 P.3d 338 (decided prior to the 2011 recompilation).
21-403. Activities of candidates for appointive judicial office.
A. A candidate for appointment to judicial office shall not solicit or accept funds, personally
or through a committee or otherwise, to support the candidacy.
B. A candidate for appointment to judicial office shall not engage in political activity to secure
the appointment except that such candidate may:
(1) communicate with the appointing authority, including any nominating commission
designated to screen candidates;
(2) seek support or endorsement for the appointment from organizations and from individuals
to the extent requested, required or permitted by the appointing authority and the nominating
commission; and
(3) provide to the appointing authority and the nominating commission information as to the
candidate's qualifications for office.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Committee commentary. —
[1] When seeking support or endorsement, or when communicating directly with an appointing or confirming authority, a candidate for appointive judicial office must not make any pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office. See Rules 21-401(A)(3)(c)(i) and 21-402(E)(6)(a) NMRA.
[2] Candidates for appointive judicial office should submit to the same requirements as a judicial candidate. See Rule 21-402 NMRA.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-404. Campaign committees.
A. Campaign committees. Candidates in both partisan, non-partisan, and retention elections
shall establish committees of one or more responsible persons to conduct campaigns for the
candidate using media advertisements, brochures, mailings, candidate forums and other means
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not prohibited by law or these rules. Campaign committees may solicit and accept reasonable
campaign contributions, and obtain public statements of support on behalf of the candidate,
subject to the restrictions of these rules including, but not limited to, Rule 21-402D NMRA. All
campaign contributions shall be paid or turned over to the campaign committee, and shall be
managed and disbursed by the committee. A candidate shall not use or permit the use of
campaign contributions for the private benefit of the candidate or others. The candidate shall
take reasonable steps to ensure that his or her campaign committee complies with applicable
provisions of this Code and other applicable law.
B. Unused campaign funds. A candidate for judicial office in either a partisan, non-partisan,
or retention election who has unused campaign funds remaining after election, and after all
expenses of the campaign and election have been paid, shall refund the remaining funds pro rata
to the campaign contributors, or donate the funds to a charitable organization, or to the State of
New Mexico, as the candidate may choose, within thirty (30) days after the date the election
results are certified.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Committee commentary. —
[1] Judicial candidates are prohibited from personally soliciting campaign contributions or personally accepting campaign contributions. See Rule 21-402(C) NMRA. This rule recognizes that judicial candidates must raise campaign funds to support their candidacies, and permits candidates, other than candidates for appointive judicial office, to establish campaign committees to solicit and accept reasonable financial contributions or in-kind contributions.
[2] Campaign committees may solicit and accept campaign contributions, manage the expenditure of campaign funds, and generally conduct campaigns. Candidates are responsible for compliance with the requirements of election law and other applicable law, and for the activities of their campaign committees.
[3] At the start of a campaign, the candidate must instruct the campaign committee to solicit or accept only such contributions as are reasonable in amount, appropriate under the circumstances, and in conformity with applicable law. Although lawyers and others who might appear before a successful candidate for judicial office are permitted to make campaign contributions, the candidate should instruct his or her campaign committee to be especially cautious in connection with such contributions, so they do not create grounds for disqualification if the candidate is elected to judicial office. See Rule 21-211 NMRA.
[4] Contributions for campaigns are limited to sources and amounts that do not create an appearance of impropriety. Candidates for judicial office may solicit contributions for their own campaigns, within the restrictions of this rule, but not for the campaigns of other candidates or offices. Candidates for election to judicial office are required to create campaign committees, see Rule 21-402(A)(1)(e) NMRA, to solicit and accept contributions, to solicit public support, and to receive, manage, and disburse all campaign contributions. Each candidate must instruct the campaign committee to solicit or accept only those contributions that are reasonable under the circumstances and that meet the requirements of this rule..
[5] Campaign committees established under this rule should attempt to manage campaign finances responsibly, avoiding deficits that may necessitate post-election fund-raising.
[6] Judicial candidates for statewide judicial elective office may elect to participate in public financing that imposes restrictions on fund-raising. See Sections 1-19A-1 through 1-19A-17 NMSA 1978. The restrictions governing campaign finances and requirements for campaign committees apply to publicly financed campaigns. A judicial candidate who seeks or has been certified for public financing must comply with Rule 21-404 NMRA. Unused campaign funds for a publicly financed judicial candidate must,
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by law, be returned to the public election fund.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-405. Activities of judges who become candidates for nonjudicial office.
A. A judge seeking appointment to a public, non-judicial office shall not:
(1) solicit or accept funds, personally or through a committee, or otherwise, to support the
candidacy;
(2) engage in any political activity to secure the appointment except:
(a) communicating with the appointing authority;
(b) seeking the support or endorsement for the appointment from organizations and from
individuals to the extent requested, required or permitted by the appointing authority, subject to
these rules; and
(c) providing to the appointing authority information concerning the candidate's qualifications
for the office.
B. A judge seeking appointment to a public non-judicial office, during the time the
appointment is sought, shall be disqualified from presiding or participating as a judge in any
legal proceeding involving or materially affecting the interests of:
(1) the appointing authority; or
(2) an organization or individual that has been contacted by the candidate to make, or is
known by the candidate to be making, a recommendation to the appointing authority concerning
the appointment.
C. No full-time judge of any court in the State of New Mexico may while in office accept a
nomination for, or be elected to, a public non-judicial office. A judge must, when filing a
statement of candidacy for elective non-judicial office, resign the judge‘s office immediately.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Committee commentary. —
[1] In campaigns for non-judicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office. Although appropriate in non-judicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her. The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for non-judicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.
[2] The "resign to run" rule set forth in Paragraph (C) ensures that a judge cannot use the judicial office to promote his or her candidacy, and prevents post-campaign retaliation from the judge in the event the judge is defeated in the election. When a judge is seeking appointive non-judicial office, however, the dangers are not sufficient to warrant imposing the "resign to run" rule.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
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Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
21-406. Violations.
A. Violations by incumbents. Violations of any of the rules of the Code of Judicial Conduct
by incumbent judges shall be investigated, proceeded upon and disposed of by the Judicial
Standards Commission in accordance with its authority and rules of procedure, and by the
Supreme Court of New Mexico acting under its powers of contempt and superintending control.
Judges shall comply with all rules, requirements and procedures of the Judicial Standards
Commission, shall cooperate with the Judicial Standards Commission in the performance of its
functions and shall comply with all laws applicable to judicial office.
B. Violations by candidates for judicial office. All candidates for judicial office shall
comply with Rules 21-401, 21-402, 21-403, 21-404, or 21-405 NMRA of the Code of Judicial
Conduct. Violations of those rules by persons who are members of the bar shall be deemed to
constitute violations of the Rules of Professional Conduct. Violations of those rules by
candidates who are not lawyers are within the superintending control of the Supreme Court, and
may be grounds for petitioning the Supreme Court for relief by way of mandamus, injunction or
other equitable relief to require compliance and rectify non-compliance.
C. Challenges of violations in election campaigns. A candidate may bring an action to
challenge a violation by the candidate's opponent of Rules 21-401 and 21-402 NMRA occurring
in election campaigns for judicial office.
(1) Filing and venue. In election campaigns for the Supreme Court and Court of Appeals, by
filing a complaint in the district court for Santa Fe County. In election campaigns for district,
metropolitan, magistrate, municipal and probate courts, by filing a complaint in the district court
of the county in which the complainant or the defendant resides, but only within the judicial
district where the election is to occur. The complainant shall serve all parties within three (3)
days after filing the action. If available, any statement, advertisement or publication alleged to
constitute a violation shall be filed with the complaint.
(2) Standing; parties. Violations by a candidate or by a candidate's campaign committee can
be challenged by an opposing candidate. The alleged violator shall be joined as a defendant and
shall be served forthwith in person with the complaint, summons and notice of hearing when
issued. A candidate who has not been joined as a party may intervene in the proceeding by
filing a notice of intervention and a response to the complaint within the time required by this
rule.
(3) Hearing. The complaint shall be heard by the district court without a jury within ten (10)
days after the action is filed, unless the time is extended for good cause. Peremptory challenges
to the district judge shall be filed by the complainant within three (3) days after the action is filed
and by a defendant within three (3) days after service of process on that defendant. The district
court shall enter its decision, findings of fact and conclusions of law, within not more than three
(3) days after the hearing is completed. The decision of the district court shall constitute a final
judgment immediately upon entry.
(4) Remedies. The district court is authorized to issue any order provided by the Rules of
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Civil Procedure for the District Courts and any remedial decrees for cessation of violations,
retractions, corrective publications or other relief as may be reasonably required to rectify the
effects of the violation. The district court may also refer any violation to the Judicial Standards
Commission or the Disciplinary Board of the Supreme Court for additional action.
(5) Discovery. Any documentary or demonstrative evidence to be offered at the hearing shall
be exchanged by the opposing parties as ordered by the district court, and in any case not less
than twenty-four (24) hours prior to the commencement of the hearing. Discovery shall not
delay the hearing on the merits, but wrongful refusal, obstruction or delay in discovery may be
sanctioned in the discretion of the district court. The parties may, by subpoena, require the
appearance of witnesses and the production of evidence at the hearing. The district court may
allow oral testimony to be admitted telephonically.
(6) Appeals. Appeals shall be taken directly to the Supreme Court of New Mexico pursuant
to the provisions of Rule 12-603 NMRA of the Rules of Appellate Procedure.
(7) Other rules applicable. The Rules of Civil Procedure for the District Courts, Rules of
Appellate Procedure and Rules of Evidence shall apply unless inconsistent with this rule.
(8) Other proceedings. The jurisdiction of the Judicial Standards Commission, the Supreme
Court and the Disciplinary Board to hear violations of the Code of Judicial Conduct is not
affected by this paragraph.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Committee commentary. —
[1] Rule 21-406 NMRA governs violations of the Code of Judicial Conduct by both incumbents and judicial candidates.
[2] Incumbent judges are required to cooperate with the Judicial Standards Commission or the Supreme Court in the course of their investigations of alleged judicial misconduct. The failure to do so is a violation of Rule 21-406 NMRA.
[3] Judicial candidates are also subject to the Code of Judicial Conduct. Violations by members of the bar are deemed violations of the Rules of Professional Conduct and subject the violator to discipline.
[4] Rule 21-406 NMRA also provides a detailed procedure to obtain an expedited judicial review of alleged violations of the Code during election campaigns. The expedited review recognizes the importance of maintaining the integrity of the election process by swiftly resolving allegations of misconduct.
Judicial candidates may also be subject to other requirements imposed by law that implicate ethical considerations including the Voter Action Act, Sections 1-19A-1 to 1-19A-17 NMSA 1978, for judicial candidates who have elected public financing, the Campaign Reporting Act, Sections 1-19-25 to 1-19-37 NMSA 1978, and the aspirational goals developed by the Fair Judicial Elections Committee.
[Adopted by Supreme Court Order No. 11-8300-045, effective January 1, 2012.]
Recompilations. — Pursuant to Supreme Court Order No. 11-8300-045, the former Judicial Code of Conduct was recompiled, effective January 1, 2012. See the table of corresponding rules for former rule numbers and the corresponding new rule numbers.
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Table of Corresponding Rules
Code of Judicial Conduct
The table below lists the former rule number and corresponding new number, and the new rule
number and the corresponding former rule number prior to recompilation by Supreme Court
Order No. 11-8300-045.
Former Rule No. Corresponding New Rule No.
Preamble Preamble
21-001 A-J Terminology
21-100 21-100, Canon 1
21-200 A 21-101, 21-102
21-200 B 21-103, 21-204 B,C, 21-303
21-200 C 21-306 A
21-300 21-200, Canon 2
21-300 A 21-201
21-300 B(1) 21-207
21-300 B(2) Canon 2, 21-202 in part, 21-204 A
21-300 B(3) 21-208 A
21-300 B(4) 21-208 B
21-300 B(5) 21-202, 21-203 A,B
21-300 B(6) 21-203 C,D
21-300 B(7) 21-206 A, 21-209 A
21-300 B(7)(a)(i) 21-209 A(1)(a)
21-300 B(7)(a)(ii) 21-209 A(1)(b)
21-300 B(7)(b) 21-209 A(2)
21-300 B(7)(c) 21-209 A(3)
21-300 B(7)(d) 21-206 B, 21-209 A(4)
21-300 B(7)(e) 21-209 A(5)
21-300 B(8) 21-205 A
21-300 B(9) 21-205 B
21-300 B(10) 21-210 A,C,D
21-300 B(11) 21-210 B
21-300 B(12) 21-208 C
21-300 B(13) 21-305
21-300 C(1) 21-205 A,B
21-300 C(2) 21-212 A
21-300 C(3) 21-212 B
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21-300 C(4) 21-213 A(1),(2),(3),B
21-300 D(1) 21-215 A,C
21-300 D(2) 21-215 B,D
21-300 D(3)(a)(b),(4) 21-214 A
21-300 E 21-214 B,C
21-300 F Omitted
21-400 A 21-211 A
21-400 A(1) 21-211 A(1)
21-400 A(2) 21-211 A(5)(a)
21-400 A(3) 21-211 A(3)
21-400 A(4) 21-211 A(5)(d)
21-400 A(5) 21-211 A(2)
21-400 A(5)(a) 21-211 A(2)(a)
21-400 A(5)(b) 21-211 A(2)(b)
21-400 A(5)(c) 21-211 A(2)(c)
21-400 A(5)(d) 21-211 A(2)(d)
21-400 A(6)(a)(b) 21-211 A(4)
21-400 B 21-211 B
21-400 C 21-211 C
21-400 D(1)-(3) Terminology
21-500 Canon 3
21-500 A 21-301
21-500 A(1) 21-301 C
21-500 A(2) No direct counterpart
21-500 A(3) 21-301 A
21-500 A(4) No direct counterpart
21-500 B See Commentary [1], 21-301
21-500 C(1) 21-302 A,B
21-500 C(2) 21-304 A,B
21-500 C(3) 21-307 A
21-500 C(3)(a) 21-307 A(5)
21-500 C(3)(a)(i) 21-307 A(5)(a)
21-500 C(3)(a)(ii) 21-307 A(5)(b)
21-500 C(3)(b)(i) 21-307 A(1),(2),(3)
21-500 C(3)(b)(ii) 21-307 A(4)
21-500 C(3)(b)(iii) 21-307 A(2),(3)
21-500 C(3)(b)(iv) No direct counterpart
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21-500 D(1) 21-311 C(3)
21-500 D(1)(a) 21-311 C(4)
21-500 D(1)(b) 21-311 C(3)
21-500 D(2) 21-311 A
21-500 D(3) 21-311 B
21-500 D(3)(a) 21-311 B(1)
21-500 D(3)(b) 21-311 B(2)
21-500 D(4) 21-311 C(2)
21-500 D(5) 21-313 A
21-500 D(5)(a) 21-313 B(7),(9),(10)(a)
21-500 D(5)(b) 21-313 B(8)
21-500 D(5)(c) 21-313 B(3)
21-500 D(5)(d) 21-313 B(2),(10)(b)
21-500 D(5)(e) 21-313 B(2),(10)(b)
21-500 D(5)(f) 21-313 B(4)
21-500 D(5)(g) 21-313 B(6)
21-500 E(1) 21-308 A
21-500 E(2) 21-308 B
21-500 E(3) 21-308 C
21-500 F 21-309
21-500 G 21-310
21-500 H 21-312 B
21-500 I 21-311 D
21-600 A 21-312 A, 21-314 A
21-600 B 21-312
21-600 C 21-314 B
21-600 D 21-314 C, 21-315
21-700 21-401
21-700 A(1) 21-401 A
21-700 A(2) 21-401 B
21-700 A(2)(a) Deleted. See 21-401 B,C(5), 21-402 A(3)(b)
21-700 A(2)(b) 21-402 F
21-700 A(2)(c) Deleted. See 21-401 A(4), 21-402 A(3)(d)
21-700 A(3)(a) 21-401 C(1)
21-700 A(3)(b) 21-401 C(2)(a)
21-700 A(3)(c) 21-401 C(3)
21-700 A(3)(d) 21-401 C(4)
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21-700 B 21-402
21-700 B(1) 21-402 A(1)(a)
21-700 B(2) 21-401 D, 21-402 A(1)(d)
21-700 B(2)(b) 21-403 B(2)
21-700 B(2)(c) 21-403 B(3)
21-700 B(3) 21-401 D, 21-402 A(1)(d)
21-700 B(4)(a) 21-401 A(2)(a)
21-700 B(4)(b) 21-401 A(2)(b)
21-700 B(5) 21-402 A(3)(a)
21-700 B(6) 21-402 A(3)(e)
21-700 B(7) 21-402 A(3)(f)
21-700 C 21-405 C
21-700 D 21-403
21-700 D(1) 21-403 A
21-700 D(2) 21-403 B
21-700 D(2)(a) 21-403 B(1)
21-700 D(2)(b) 21-403 B(2)
21-700 D(2)(c) 21-403 B(3)
21-700 E 21-405
21-700 E(1)(a) 21-405 A(1)
21-700 E(1)(b)(i) 21-405 A(2)(a)
21-700 E(1)(b)(ii) 21-405 A(2)(b)
21-700 E(1)(b)(iii) 21-405 A(2)(c)
21-700 E(2) 21-405 B
21-700 E(2)(a) 21-405 B(1)
21-700 E(2)(b) 21-405 B(2)
21-700 F Terminology
21-800 A 21-402 B
21-800 B 21-402 C
21-800 C 21-402 A(1)(e), 21-404 A
21-800 D 21-402 D
21-800 E 21-402 B
21-800 F 21-402 E
21-900 A 21-216 A, 21-406 A
21-900 B 21-406 B
21-900 C 21-406 C
21-900 C(1) 21-406 C(1)
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21-900 C(2) 21-406 C(2)
21-900 C(3) 21-406 C(3)
21-900 C(4) 21-406 C(4)
21-900 C(5) 21-406 C(5)
21-900 C(6) 21-406 C(6)
21-900 C(7) 21-406 C(7)
21-900 C(8) 21-406 C(8)
21-901 A, Scope Rules 4.1(A)(8), 4.2(A)(1), Scope
21-901 B See Rules 4.1(A)(4), 4.2(B)(3)
21-901 B(1) Rule 4.2, Commentary [6],[7]
21-901 B(2) Rules 4.1(A)(9), 4.2(B)(1), 4.4
21-901 C See generally Rule 4.4
21-901 C(1)(a) See generally Rule 4.4
21-901 C(1)(b) See Rules 4.4, Commentary [3], 2.11(A)(4)
21-901 C(1)(c) No direct counterpart
21-901 C(1)(d)(i),(ii),(2) See generally Rule 4.1, Commentary [2]
21-901 D No direct counterpart
21-901 E Application V
Corresponding New Rule No.
Former Rule No.
Preamble Preamble
Scope 21-901 A
Terminology 21-001, 21-400D, 21-700 F
Application 21-901
21-100 - Canon 1 21-100, 21-200 (titles)
21-101 21-200 A
21-102 21-200 A
21-103 21-200 B
21-200 - Canon 2 21-300 (title)
21-201 21-300 A
21-202 21-300 B(2),(5)
21-203 A 21-300 B(5)
21-203 B 21-300 B(5)
21-203 C 21-300 B(6)
21-203 D 21-300 B(6)
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21-204 A 21-300 B(2)
21-204 B 21-200 B
21-204 C 21-200 B
21-205 A 21-300 B(8)
21-205 B 21-300 C(1)
21-206 A 21-300 B(7)
21-206 B 21-300 B(7)(d)
21-207 21-300 B(1)
21-208 A 21-300 B(3)
21-208 B 21-300 B(4)
21-208 C 21-300 B(12)
21-209 A 21-300 B(7)
21-209 A(1) 21-300 B(7)(a)
21-209 A(1)(a) 21-300 B(7)(a)(i)
21-209 A(1)(b) 21-300 B(7)(a)(ii)
21-209 A(2) 21-300 B(7)(b)
21-209 A(3) 21-300 B(7)(c)
21-209 A(4) 21-300 B(7)(d)
21-209 A(5) 21-300 B(7)(e)
21-209 B No direct counterpart
21-209 C 21-300 - Commentary, Paragraph B(7)
21-209 D 21-300 - Commentary, Paragraph B(7)
21-210 A 21-300 B(10)
21-210 B 21-300 B(11)
21-210 C 21-300 B(10)
21-210 D 21-300 B(10)
21-210 E No direct counterpart. See 21-700 B(7)
21-211 A 21-400 A
21-211 A(1) 21-400 A(1)
21-211 A(2) 21-400 A(5)
21-211 A(2)(a) 21-400 A(5)(a)
21-211 A(2)(b) 21-400 A(5)(b)
21-211 A(2)(c) 21-400 A(5)(c)
21-211 A(2)(d) 21-400 A(5)(d)
21-211 A(3) 21-400 A(3)
21-211 A(4) 21-400 A(6)(a)(b)
21-211 A(5)(a) 21-400 A(2)
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21-211 A(5)(b) No direct counterpart
21-211 A(5)(c) 21-400 A(2) in part
21-211 A(5)(d) 21-400 A(4)
21-211 B 21-400 B
21-211 C 21-400 C
21-212 A 21-300 C(2)
21-212 B 21-300 C(3)
21-212 C No direct counterpart
21-212 D No direct counterpart
21-213 A(1),(2),(3),B 21-300 C(4)
21-214 A No direct counterpart
21-214 B 21-300 E
21-214 C 21-300 E
21-215 A 21-300 D(1)
21-215 B 21-300 D(2)
21-215 C 21-300 D(1)
21-215 D 21-300 D(2)
21-216 A 21-900 A
21-216 B No direct counterpart
21-300 - Canon 3 21-300 (title)
21-301 A 21-500 A(3)
21-301 B No direct counterpart
21-301 C 21-500 A(1)
21-301 D No direct counterpart
21-301 E No direct counterpart
21-302 A,B 21-500 C(1)
21-303 21-200 B
21-304 A,B 21-500 C(2)
21-305 21-300 B(13)
21-306 A 21-200 C
21-306 B No direct counterpart
21-307 A 21-500 C(3)
21-307 A(1)(2) 21-500 C(3)(b)(i)
21-307 A(3) No direct counterpart
21-307 A(4) 21-500 C(3)(b)(ii)
21-307 A(5) 21-500 C(3)(a)
21-307 A(5)(a) 21-500 C(3)(a)(i)
13-95
21-307 A(5)(b) 21-500 C(3)(a)(ii)
21-307 B New provision
21-308 A 21-500 E(1)
21-308 B 21-500 E(2)
21-308 C 21-500 E(3)
21-308 D See Commentary, 21-500 E
21-309 21-500 F
21-310 21-500 G
21-311 A 21-500 D(2)
21-311 B 21-500 D(3)
21-311 B(1) 21-500 D(3)(a)
21-311 B(2) 21-500 D(3)(b)
21-311 C 21-500 A
21-311 C(1) 21-500 A(3)
21-311 C(2) No direct counterpart
21-311 C(3) 21-500 D(1)(b)
21-311 C(4) No direct counterpart
21-311 C(5) No direct counterpart
21-311 D 21-500 I
21-312 A 21-600 A
21-312 B 21-500 H
21-313 A 21-500 D(5)
21-313 B(1) No direct counterpart
21-313 B(2) 21-500 D(5)(d)
21-313 B(3) 21-500 D(5)(c)
21-313 B(4) 21-500 D(5)(f)
21-313 B(5) No direct counterpart
21-313 B(6) 21-500 D(5)(g)
21-313 B(7) 21-500 D(5)(a)
21-313 B(8) 21-500 D(5)(b)
21-313 B(9) No direct counterpart
21-313 B(10)(a) 21-500 D(5)(a)
21-313 B(10)(b) No direct counterpart. See 21-500 D(5)(d)
21-314 A 21-600 A
21-314 B 21-600 C
21-314 C 21-600 D
21-315 21-600 D
13-96
21-400 - Canon 4 No direct counterpart. See Commentary, Canon 4
21-401 A 21-700 A(1)
21-401 B 21-700 A(2)
21-401 C(1) 21-700 A(3)(a)
21-401 C(2)(a) 21-700 A(3)(b)
21-401 C(2)(b) No direct counterpart
21-401 C(3) 21-700 A(3)(c)
21-401 C(4) 21-700 A(3)(d)
21-401 C(5) No direct counterpart
21-401 C(6) No direct counterpart
21-401 C(7) No direct counterpart. See 21-700 B(6)
21-401 C(8) No direct counterpart
21-401 C(9) 21-700 B(4)(a)
21-401 D 21-700 B(2)(3)
21-402 A(1)(a) 21-700 B(1)
21-402 A(1)(b) No direct counterpart
21-402 A(1)(c) No direct counterpart
21-402 A(1)(d) 21-700 B(2)(3)
21-402 A(1)(e) 21-800 C
21-402 A(2)(a) 21-700 B(4)(a)
21-402 A(2)(b) 21-700 B(4)(b)
21-402 A(3)(a) 21-700 B(5)
21-402 A(3)(b) 21-700 A(2)(a)
21-402 A(3)(c) No direct counterpart. See 21-700 A(1)
21-402 A(3)(d) 21-700 A(2)(c)
21-402 A(3)(e) 21-700 B(6)
21-402A(3)(f) 21-700 B(7)
21-402 B 21-800 A
21-402 C 21-800 B
21-402 D 21-800 D
21-402 E 21-800 F
21-402 F 21-700 A(2)(b)
21-402 G No direct counterpart. See 21-700A(1)
21-403 A 21-700 D(1)
21-403 B(1) 21-700 D(2)(a)
21-403 B(2) 21-700 B(2)(b)
21-403 B(3) 21-700 B(2)(c)
13-97
21-404 A 21-800 C
21-404 B 21-800 E
21-405 A(1) 21-700 E(1)(a)
21-405 A(2)(a) 21-700 E(1)(b)(i)
21-405 A(2)(b) 21-700 E(1)(b)(ii)
21-405 A(2)(c) 21-700 E(1)(b)(iii)
21-405 B(1) 21-700 E(2)(a)
21-405 B(2) 21-700 E(2)(b)
21-405 C 21-700 C
21-406 A 21-900 A
21-406 B 21-900 B
21-406 C 21-900 C
21-406 C(1) 21-900 C(1)
21-406 C(2) 21-900 C(2)
21-406 C(3) 21-900 C(3)
21-406 C(4) 21-900 C(4)
21-406 C(5) 21-900 C(5)
21-406 C(6) 21-900 C(6)
21-406 C(7) 21-900 C(7)
21-406 C(8) 21-900 C(8)
13-98
14-1
CHAPTER 14
Selected New Mexico Statutes
This chapter provides:
Statutes concerning probate courts.
Statutes from the Uniform Probate Code.
Statutes concerning safe deposit boxes.
14.1 Statutes Concerning Probate Courts
Chapter 34, Court Structure and Administration
Article 7, Probate Courts
Section 34-7-1 Probate judge; authorized. 34-7-2 Probate judge and sheriff elected at each general election. 34-7-3 Seal of probate court. 34-7-4 Place of holding court and keeping clerk's office. 34-7-5 Failure to hold court or keep clerk's office at county seat; penalty. 34-7-6 County must furnish office and supplies for judge. 34-7-7 Custody of archives, documents and books. 34-7-8 Probate courts; hours of business; notice. 34-7-9 Probate judge interested or disqualified; transfer to district court. 34-7-10 Proceedings in district court after transfer. 34-7-11 Probate judge absent or unable to attend to duties; powers of district judge. 34-7-12 Repealed. 34-7-13 Judges may issue process and make rules. 34-7-14 Fees of probate court clerks. 34-7-15 Additional fees of clerk. 34-7-16 Fees exclusive. 34-7-17 Record of receipts and disbursements. 34-7-18 Current accounts; public inspection. 34-7-19 Penalty for violation of Sections 34-7-17 and 34-7-18 NMSA 1978. 34-7-20 Record of decedent's [decedents'] estates. 34-7-21 Record of bonds and wills. 34-7-22 Deputy clerks; appointment; powers. 34-7-23 Oath of deputy clerks. 34-7-24 Authority of deputies; responsibility; signing papers. 34-7-25 Compensation of deputies to be paid by clerk.
34-7-1. Probate judge; authorized.
There shall be a probate judge in each county of this state. The position of probate judge shall be
deemed a part-time position.
14-2
History: Kearny Code, Courts and Judicial Powers, § 19; C.L. 1865, ch. 21, § 1; C.L. 1884, §
407; C.L. 1897, § 745; Code 1915, § 1423; C.S. 1929, § 34-401; 1941 Comp., § 16-401; 1953
Comp., § 16-4-1; Laws 1987, ch. 224, § 1.
34-7-2. [Probate judge and sheriff elected at each general election.]
At each general election held in this state there shall be elected in each county a probate judge
and a sheriff.
History: Laws 1851-1852, p. 198; C.L. 1865, ch. 63, § 4; Code 1915, § 1245; C.S. 1929, § 33-
4401; 1941 Comp., § 16-402; 1953 Comp., § 16-4-2.
34-7-3. [Seal of probate court.]
The probate courts shall procure and keep a seal with such emblems and devices as the courts
shall think proper.
History: Kearny Code, Records and Seals, § 1; C.L. 1865, ch. 93, § 1; C.L. 1884, § 658; C.L.
1897, § 1033; Code 1915, § 1424; C.S. 1929, § 34-402; 1941 Comp., § 16-404; 1953 Comp., §
16-4-4.
34-7-4. [Place of holding court and keeping clerk's office.]
The probate judges of this state are strictly required to hold their courts in the county seats of
their counties, and the probate clerks shall also have their offices in the said county seat of the
county at all times.
History: Laws 1869-1870, ch. 51, § 1; C.L. 1884, § 415; C.L. 1897, § 749; Code 1915, § 1426;
C.S. 1929, § 34-404; 1941 Comp., § 16-405; 1953 Comp., § 16-4-5.
34-7-5. [Failure to hold court or keep clerk's office at county seat; penalty.]
For every neglect on the part of any probate judge, or clerk of any probate court of the state, in
the discharge of their duties as prescribed in the previous section [34-7-4 NMSA 1978], the one
so failing, upon conviction thereof in the district court, shall be fined in a sum not exceeding five
thousand dollars [($5,000)].
History: Laws 1869-1870, ch. 51, § 2; 1882, ch. 82, § 1; C.L. 1884, § 16; C.L. 1897, § 750;
Code 1915, § 1427; C.S. 1929, § 34-405; 1941 Comp., § 16-406; 1953 Comp., § 16-4-6.
34-7-6. [County must furnish office and supplies for judge.]
That the county commissioners of each county in this state shall provide a suitable office for the
accommodation of the probate judge of the county, and shall furnish all stationery, and such
other things as may be necessary for the prompt discharge of the duties of said judges.
History: Laws 1887, ch. 66, § 3; C.L. 1897, § 754; Code 1915, § 1437; C.S. 1929, § 34-418;
1941 Comp., § 16-407; 1953 Comp., § 16-4-7.
34-7-7. [Custody of archives, documents and books.]
The archives of said offices shall be under the charge of the clerks of said probate courts, and
said clerks are prohibited from taking from said offices any document or book pertaining to said
offices beyond six miles from said offices.
History: Law 1865-1866, ch. 41, § 2; C.L. 1884, § 411; C.L. 1897, § 747; Code 1915, § 1425;
C.S. 1929, § 34-403; 1941 Comp., § 16-408; 1953 Comp., § 16-4-8.
14-3
34-7-8. Probate courts; hours of business; notice.
The probate courts of the state shall be in session and open at such times as are needed for the
transaction of any business matters which may properly come before the courts under the laws of
the state and upon notice thereof given as required under the laws of the state.
History: Laws 1935, ch. 63, § 1; 1941 Comp., § 16-409; 1953 Comp., § 16-4-9; Laws 1987, ch.
224, § 2.
34-7-9. [Probate judge interested or disqualified; transfer to district court.]
Whenever the probate judge shall, for any reason, be interested or disqualified from acting in any
proceeding coming within the jurisdiction of the probate court, he shall upon his own motion or
that of any interested party, forthwith enter an order transferring such proceeding to the district
court having jurisdiction in that county and directing the probate clerk to deposit forthwith within
the office of the clerk of said district court a certified copy of said order together with all original
papers and records or certified copies of all original papers and records in the probate court
relating to said proceeding.
History: Laws 1889, ch. 132, § 1; C.L. 1897, § 751; Code 1915, § 1433; C.S. 1929, § 34-414;
Laws 1933, ch. 102, § 1; 1941 Comp., § 16-412; 1953 Comp., § 16-4-12.
34-7-10. [Proceedings in district court after transfer.]
All proceedings thus transferred shall be docketed as other causes in the district court, which
court shall thereupon exercise the same authority and take the same steps and proceedings as
would have otherwise have [sic] been taken in the probate court.
History: Laws 1933, ch. 102, § 2; 1941 Comp., § 16-413; 1953 Comp., § 16-4-13.
34-7-11. [Probate judge absent or unable to attend to duties; powers of district judge.]
Whenever the probate judge shall be absent from the county wherein he was elected, or shall be
incapacitated or unable to attend to his duties from any cause whatsoever, any district judge, of
said county, or any other district judge designated to hold court in said county for him, may do
any and all things that could otherwise be done by said probate judge, without the necessity of
having the matters or proceedings transferred from the docket of the probate court to the docket
of the district court. The fact of such absence or incapacity shall be recited in every order of the
district judge entered in accordance with this act [section].
History: Laws 1933, ch. 101, § 1; 1941 Comp., § 16-414; Laws 1943, ch. 65, § 1; 1953 Comp.,
§ 16-4-14.
34-7-12. Repealed.
Repeals. — Laws 1978, ch. 159, § 15, effective March 6, 1978, repealed 16-4-15, 1953 Comp. (34-7-12 NMSA 1978), relating to vacancy in the office of probate judge.
34-7-13. [Judges may issue process and make rules.]
That the judges of probate courts shall have full power and authority to issue whatever process
may be necessary for the efficient discharge of their duties, and to make and publish rules and
orders regulating the business and practice of their several courts, not inconsistent with the laws
of this state.
History: Laws 1887, ch. 66, § 1; C.L. 1897, § 752; Code 1915, § 1435; C.S. 1929, § 34-416;
14-4
1941 Comp., § 16-416; 1953 Comp., § 16-4-16.
34-7-14. Fees of probate court clerks.
Clerks of the probate courts are entitled to receive the following docket fees in all matters:
A. for docketing each cause, to be paid by the party docketing the cause, thirty
dollars ($30.00), which shall include all costs of the clerks in any cause in the court; and
B. a fee of fifteen cents ($.15) per folio in addition to the docket fee may be charged
for any excess of twenty folios in cases where judgments or decrees or orders exceed twenty
folios.
History: Laws 1923, ch. 29, § 1; C.S. 1929, § 34-406; Laws 1937, ch. 111, § 1; 1941 Comp., §
16-422; 1953 Comp., § 16-4-22; Laws 1961, ch. 16, § 1; 1975, ch. 257, § 8-102; 1993, ch. 132, §
1.
34-7-15. [Additional fees of clerk.]
In addition to the fees provided for in Section 1 [34-7-14 NMSA 1978] hereof, clerks of probate
courts may charge the following fees:
for making an itemized bill of costs in any case, when demanded, fifty cents [($.50)];
for making and certifying to transcript of judgment, one dollar [($1.00)];
for taking an acknowledgment and affixing seal, fifty cents [($.50)], if but one person
acknowledges, and twenty-five cents [($.25)] for each additional person;
for making copies of records or papers, ten cents [($.10)] per folio of one hundred words, for
carbon copies three cents [($.03)] per folio;
for certificate and seal authenticating any paper as a true and correct copy, fifty cents [($.50)];
for making transcripts on appeal or certiorari to any court, and for certifying the same, such fees
as are now provided by law; provided, however, that only fees for certification shall be charged
where the transcript is prepared by the litigant himself.
History: Laws 1923, ch. 29, § 2; C.S. 1929, § 34-407; 1941 Comp., § 16-423; 1953 Comp., §
16-4-23.
34-7-16. [Fees exclusive.]
No other or different fees than those above provided shall be made or received by clerks of
probate courts, and any services required of them in any matter other than those for which fees
are herein provided shall be without compensation.
History: Laws 1923, ch. 29, § 4; C.S. 1929, § 34-409; 1941 Comp., § 16-424; 1953 Comp., §
16-4-24.
34-7-17. [Record of receipts and disbursements.]
The probate clerks of the different counties of this state are hereby required to keep a separate
book for the sole purpose of keeping an exact account, which shall show in a clear and distinct
manner all the money received, specifying the object for which it was received; and that the
same book shall also contain a distinct and clear list of all warrants issued against the county
treasury, and for what purpose.
History: Laws 1860-1861, p. 80; C.L. 1865, ch. 39, § 20; C.L. 1884, § 417; C.L. 1897, § 755;
14-5
Code 1915, § 1447; C.S. 1929, § 34-432; 1941 Comp., § 16-425; 1953 Comp., § 16-4-25.
34-7-18. [Current accounts; public inspection.]
There shall also be kept in said book a full copy of the accounts current for the year, open to the
inspection of any citizen who may wish to examine the same as often as he may desire so to do.
History: Laws 1860-1861, p. 80; C.L. 1865, ch. 39, § 21; C.L. 1884, § 418; C.L. 1897, § 756;
Code 1915, § 1448; C.S. 1929, § 34-433; 1941 Comp., § 16-426; 1953 Comp., § 16-4-26.
34-7-19. [Penalty for violation of Sections 34-7-17 and 34-7-18 NMSA 1978.]
All clerks who shall fail in the discharge of the duties required in the two foregoing sections [34-
7-17, 34-7-18 NMSA 1978] shall be considered guilty of a misdemeanor, and on conviction
before the district court shall be fined at the discretion of the court, in any sum not less than
twenty-five dollars [($25.00)], nor more than one hundred dollars [($100)].
History: Laws 1860-1861, p. 80; C.L. 1865, ch. 39, § 24; C.L. 1884, § 419; C.L. 1897, § 757;
Code 1915, § 1449; C.S. 1929, § 34-434; 1941 Comp., § 16-427; 1953 Comp., § 16-4-27.
34-7-20. Record of decedent's [decedents'] estates.
The county clerk shall keep a record or docket additional to the other records required by law,
showing as follows:
A. the name of every decedent whose estate is administered and the date of his death;
B. the names of all the heirs, devisees and surviving spouse of the decedent and their
ages and places of residence, so far as the same can be ascertained; and
C. a note of every sale of real estate made under the order of the court, with a
reference to the volume and page of the court record where a complete record thereof may be
found.
History: Laws 1889, ch. 90, § 42; C.L. 1897, § 2011; Code 1915, § 2309; C.S. 1929, § 47-902;
1941 Comp., § 16-428; 1953 Comp., § 16-4-28; Laws 1975, ch. 257, § 8-103.
34-7-21. Record of bonds and wills.
The clerk shall also record at length in books kept for that purpose, all bonds given by personal
representatives, conservators and guardians, and all wills admitted to probate.
History: Laws 1889, ch. 90, § 43; C.L. 1897, § 2012; Code 1915, § 2310; C.S. 1929, § 47-903;
1941 Comp., § 16-429; 1953 Comp., § 16-4-29; Laws 1975, ch. 257, § 8-104.
34-7-22. [Deputy clerks; appointment; powers.]
The clerks of the probate courts of this state, with the consent of the probate judges, shall have
power to appoint a deputy clerk of the probate court; each clerk shall appoint one, and such
deputies when duly appointed and qualified shall have full power and shall be authorized to
perform all the duties of the clerk of the said probate court.
History: Laws 1866-1867, ch. 24, § 1; C.L. 1884, § 421; C.L. 1897, § 759; Code 1915, § 1443;
C.S. 1929, § 34-427; 1941 Comp., § 16-430; 1953 Comp., § 16-4-30.
14-6
34-7-23. [Oath of deputy clerks.]
The said deputy clerk shall take the same oath of office as is or may be provided by law as to his
duties, which oath of office and his appointment shall be recorded in the records of the probate
court.
History: Laws 1866-1867, ch. 24, § 2; C.L. 1884, § 422; C.L. 1897, § 760; Code 1915, § 1444;
C.S. 1929, § 34-429; 1941 Comp., § 16-431; 1953 Comp., § 16-4-31.
34-7-24. [Authority of deputies; responsibility; signing papers.]
The clerks of the probate court shall be responsible, respectively, for the acts of their deputies,
and for such purpose, all and every official act of the deputy shall be considered as an official act
of the clerk who appointed him, and each deputy clerk shall sign all the papers issued by himself
with the name of the clerk, in this manner: A. B., clerk of the probate court, by C. D., deputy
clerk.
History: Laws 1866-1867, ch. 24, § 3; C.L. 1884, § 423; C.L. 1897, § 761; Code 1915, § 1445;
C.S. 1929, § 34-430; 1941 Comp., § 16-432; 1953 Comp., § 16-4-32.
34-7-25. [Compensation of deputies to be paid by clerk.]
A deputy clerk of the probate court shall not receive any additional salary or pay of any kind for
the performance of his duties, and his compensation shall be taken out from the pay and the fees
of the clerk as allowed by law and as agreed upon between the deputy and the clerk who appoints
him.
History: Laws 1866-1867, ch. 24, § 4; C.L. 1884, § 424; C.L. 1897, § 762; Code 1915, § 1446;
C.S. 1929, § 34-431; 1941 Comp., § 16-433; 1953 Comp., § 16-4-33.
14.2 Statutes from the Uniform Probate Code
45-1-107. Evidence of death or status.
In addition to the rules of evidence in courts of general jurisdiction, the following rules relating
to a determination of death and status apply:
A. in accordance with Subsection A of Section 12-2-4 NMSA 1978, death occurs when
an individual has sustained either:
(1) irreversible cessation of circulatory and respiratory functions; or
(2) irreversible cessation of all functions of the entire brain, including the brain stem.
A determination of death must be made in accordance with accepted medical standards;
B. an authenticated copy of a death certificate purporting to be issued by an official or
agency of the place where the death purportedly occurred is prima facie evidence of the fact,
place, date and time of death and the identity of the decedent;
C. an authenticated copy of a record or report of a governmental agency, domestic or
foreign, that an individual is missing, detained, dead or alive is prima facie evidence of the status
and of the dates, circumstances and places disclosed by the record or report;
D. in the absence of prima facie evidence of death pursuant to Subsections B or C of this
section, the fact of death may be established by clear and convincing evidence, including
circumstantial evidence;
E. an individual whose death is not established pursuant to Subsection A, B, C or D of
14-7
this section who is absent for a continuous period of five years, during which the person has not
been heard from and whose absence is not satisfactorily explained after diligent search or inquiry
is presumed to be dead. The person's death is presumed to have occurred at the end of the period
unless there is sufficient evidence for determining that death occurred earlier; and
F. in the absence of evidence disputing the time of death stated on a document described
in Subsection B or C of this section, a document described in Subsection B or C of this section
that states a time of death one hundred twenty hours or more after the time of death of another
individual, however the time of death of the other individual is determined, establishes by clear
and convincing evidence that the individual survived the other individual by one hundred twenty
hours.
History: 1953 Comp., § 32A-1-107, enacted by Laws 1975, ch. 257, § 1-107; repealed and
reenacted by Laws 1993, ch. 174, § 3; 2011, ch. 124, § 3.
45-1-302. Subject matter jurisdiction of district and probate courts.
A. The district court has exclusive original jurisdiction over all subject matter relating
to:
(1) formal proceedings with respect to the estates of decedents, including determinations
of testacy, appointment of personal representatives, constructions of wills, administration and
expenditure of funds of estates, determination of heirs and successors of decedents and
distribution and closing of estates;
(2) estates of missing and protected persons;
(3) protection of incapacitated persons and minors;
(4) survivorship and related accounts and similar property interests;
(5) disclaimer of interests in property;
(6) apportionment of taxes on estates; and
(7) governing instruments except wills.
B. The district court in formal proceedings shall have jurisdiction to determine title to
and value of real or personal property as between the estate and any interested person, including
strangers to the estate claiming adversely thereto. The district court has full power to make
orders, judgments and decrees and to take all other action necessary and proper to administer
justice in matters that come before it.
C. The probate court and the district court have original jurisdiction over informal
proceedings for probate of a will or appointment of a personal representative.
History: 1953 Comp., § 32A-1-302, enacted by Laws 1975, ch. 257, § 1-302; 1978, ch. 159, §
2; 2011, ch. 124, § 7.
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.
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 [45-5A-101 NMSA 1978], if a proceeding under the Uniform
14-8
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.
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.
45-1-307. Probate court; powers.
If for any reason the probate judge is unable to act, the acts and orders which the Probate Code
[this chapter] specifies as performable by the probate court may be performed either by a judge
of the district court or by a person designated by the district court by a written order filed and
recorded in the office of the clerk of the district court.
History: 1953 Comp., § 32A-1-307, enacted by Laws 1975, ch. 257, § 1-307.
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
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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.
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 [this chapter],
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: 1978 Comp., § 45-2-101, enacted by Laws 1993, ch. 174, § 5.
45-2-102. Share of the spouse.
The intestate share of the surviving spouse is determined as follows:
A. as to separate property:
(1) if there is no surviving issue of the decedent, the entire intestate estate; or
(2) if there is surviving issue of the decedent, one-fourth of the intestate estate; and
B. as to community property, the one-half of the community property as to which the
decedent could have exercised the power of testamentary disposition passes to the surviving
spouse.
History: 1953 Comp., § 32A-2-102, enacted by Laws 1975, ch. 257, § 2-102.
45-2-103. Share of heirs other than surviving spouse.
A. Any part of the intestate estate not passing to a decedent's surviving spouse pursuant
to Section 45-2-102 NMSA 1978, or the entire intestate estate if there is no surviving spouse,
passes in the following order to the individuals who survive the decedent:
(1) to the decedent's descendants by representation;
(2) if there is no surviving descendant, to the decedent's parents equally if both survive,
or to the surviving parent if only one survives;
(3) if there is no surviving descendant or parent, to the descendants of the decedent's
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parents or either of them by representation;
(4) if there is no surviving descendant, parent or descendant of a parent, but the
decedent is survived on both the paternal and maternal sides by one or more grandparents or
descendants of grandparents:
(a) half to the decedent's paternal grandparents equally if both survive, to the
surviving paternal grandparent if only one survives, or to the descendants of the
decedent's paternal grandparents or either of them if both are deceased, the descendants
taking by representation; and
(b) half to the decedent's maternal grandparents equally if both survive, to the
surviving maternal grandparent if only one survives, or to the descendants of the
decedent's maternal grandparents or either of them if both are deceased, the descendants
taking by representation; and
(5) if there is no surviving descendant parent, or descendant of a parent, but the
decedent is survived by one or more grandparents or descendants of grandparents on the paternal
but not the maternal side, or on the maternal but not the paternal side, to the decedent's relatives
on the side with one or more surviving members in the manner described in Paragraph (4) of this
subsection.
B. If there is no taker under Subsection A of this section, but the decedent has:
(1) one deceased spouse who has one or more descendants who survive the decedent,
the estate or part thereof passes to that spouse's descendants by representation; or
(2) more than one deceased spouse who has one or more descendants who survive the
decedent, an equal share of the estate or part thereof passes to each set of descendants by
representation.
C. For purposes of Subsection B of this section, the term "deceased spouse" means an
individual to whom the decedent was married at the individual's death, and does not include a
spouse who was divorced from, or treated pursuant to Section 45-2-802 or Section 45-2-804
NMSA 1978 as divorced from, the decedent at the time of the decedent's death.
History: 1953 Comp., § 32A-2-103, enacted by Laws 1975, ch. 257, § 2-103; 1977, ch. 121, §
3; repealed and reenacted by Laws 1993, ch. 174, § 6; 2011, ch. 124, § 10.
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.
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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.
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: 1978 Comp., § 45-2-106, enacted by Laws 1993, ch. 174, § 9.
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
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blood.
History: 1953 Comp., § 32A-2-107, enacted by Laws 1975, ch. 257, § 2-107.
45-2-114. Parent barred from inheriting in certain circumstances.
A. A parent is barred from inheriting from or through a child of the parent if:
(1) the parent's parental rights were terminated and the parent-child relationship was
not judicially reestablished; or
(2) the child died before reaching eighteen years of age and there is clear and
convincing evidence that immediately before the child's death the parental rights of the parent
could have been terminated under law of New Mexico other than the Uniform Probate Code on
the basis of nonsupport, abandonment, abuse, neglect or other actions or inactions of the parent
toward the child.
B. For the purpose of intestate succession from or through the deceased child, a parent
who is barred from inheriting under this section is treated as if the parent predeceased the child.
History: 1978 Comp., § 45-2-114 , enacted by Laws 1993, ch. 174, § 16; 2004, ch. 72, § 1;
2011, ch. 124, § 12.
45-2-301. Entitlement of spouse; premarital will.
A. If a testator's surviving spouse married the testator after the testator executed his will, the
surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of
the estate he would have received if the testator had died intestate as to that portion of the
testator's estate, if any, that neither is devised to a child of the testator who was born before the
testator married the surviving spouse and who is not a child of the surviving spouse nor is
devised to a descendant of such a child or passes pursuant to Section 45-2-603 or 45-2-604
NMSA 1978 to such a child or to a descendant of such a child, unless:
(1) it appears from the will or other evidence that the will was made in contemplation
of the testator's marriage to the surviving spouse;
(2) the will expresses the intention that it is to be effective notwithstanding any
subsequent marriage; or
(3) the testator provided for the spouse by transfer outside the will and the intent that
the transfer be in lieu of a testamentary provision is shown by the testator's statements or is
reasonably inferred from the amount of the transfer or other evidence.
B. In satisfying the share provided by this section, devises made by the will to the testator's
surviving spouse, if any, are applied first, and other devises, other than a devise to a child of the
testator who was born before the testator married the surviving spouse and who is not a child of
the surviving spouse or a devise or substitute gift pursuant to Section 45-2-603 or 45-2-604
NMSA 1978 to a descendant of such a child, abate as provided in Section 45-3-902 NMSA 1978.
History: 1978 Comp., § 45-2-301, enacted by Laws 1993, ch. 174, § 17; 1995, ch. 210, § 5.
45-2-302. Omitted children.
A. Except as provided in Subsection B of this section, if a testator fails to provide in his will
for any of his children born or adopted after the execution of the will, the omitted after-born or
after-adopted child receives a share in the estate as follows:
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(1) if the testator had no child living when he executed the will, an omitted after-born
or after-adopted child receives a share in the estate equal in value to that which the child would
have received had the testator died intestate, unless the will devised all or substantially all of the
estate to the other parent of the omitted child and that other parent survives the testator and is
entitled to take under the will; or
(2) if the testator had one or more children living when he executed the will and the
will devised property or an interest in property to one or more of the then-living children, an
omitted after-born or after-adopted child is entitled to share in the testator's estate as follows:
(a) the portion of the testator's estate in which the omitted after-born or after-adopted
child is entitled to share is limited to devises made to the testator's then-living children under the
will;
(b) the omitted after-born or after-adopted child is entitled to receive the share of the
testator's estate, as limited in Subparagraph (a) of Paragraph (2) of Subsection A of this section,
that the child would have received had the testator included all omitted after-born and after-
adopted children with the children to whom devises were made under the will and had given an
equal share of the estate to each child;
(c) to the extent feasible, the interest granted an omitted after-born or after-adopted
child under this section must be of the same character, whether equitable or legal, present or
future, as that devised to the testator's then-living children under the will; and
(d) in satisfying a share provided by Paragraph (2) of Subsection A of this section,
devises to the testator's children who were living when the will was executed abate ratably. In
abating the devices of the then-living children, the court shall preserve to the maximum extent
possible the character of the testamentary plan adopted by the testator.
B. Subsection A of this section does not apply if:
(1) it appears from the will that the omission was intentional; or
(2) the testator provided for the omitted after-born or after-adopted child by transfer
outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by
the testator's statements or is reasonably inferred from the amount of the transfer or other
evidence.
C. If at the time of execution of the will the testator fails to provide in his will for a living
child solely because he believes the child to be dead, the child is entitled to share in the estate as
if the child were an omitted after-born or after-adopted child.
D. In satisfying a share provided by Paragraph (1) of Subsection A of this section, devises
made by the will abate pursuant to Section 45-3-902 NMSA 1978.
History: 1978 Comp., § 45-2-302, enacted by Laws 1993, ch. 174, § 18; 1995, ch. 210, § 6.
45-2-401. Applicable law.
Chapter 45, Article 2, Part 4 NMSA 1978 applies to the estate of a decedent who dies domiciled
in this state. Rights to family allowance and personal property allowance for a decedent who
dies not domiciled in this state are governed by the laws of the decedent's domicile at death.
History: 1953 Comp., § 32A-2-401, enacted by Laws 1975, ch. 257, § 2-401; repealed and
reenacted by Laws 1993, ch. 174, § 19.
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45-2-402. Family allowance.
A decedent's surviving spouse is entitled to a family allowance of thirty thousand dollars
($30,000). If there is no surviving spouse, each minor child and each dependent child of the
decedent is entitled to a family allowance amounting to thirty thousand dollars ($30,000) divided
by the number of minor and dependent children of the decedent. The family allowance is exempt
from and has priority over all claims against the estate. Family allowance is in addition to any
share passing to the surviving spouse or minor or dependent children by intestate succession or
by the decedent's will, unless otherwise provided by the decedent in the will or other governing
instrument.
History: 1978 Comp., § 45-2-402, enacted by Laws 1993, ch. 174, § 20; 1995, ch. 210, § 7.
45-2-403. Personal property allowance.
In addition to the family allowance, the decedent's surviving spouse is entitled from the estate
to a value, not exceeding fifteen thousand dollars ($15,000) in excess of any security interests
therein, in household furniture, automobiles, furnishings, appliances and personal effects. If
there is no surviving spouse, the decedent's children who are devisees under the will, who are
entitled to a share of the estate pursuant to Section 45-2-302 NMSA 1978 or, if there is no will,
who are intestate heirs are entitled jointly to the same value. If encumbered chattels are selected
and the value in excess of security interests plus that of other exempt property is less than fifteen
thousand dollars ($15,000) or if there is not fifteen thousand dollars ($15,000) worth of exempt
property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the
extent necessary to make up the fifteen thousand dollar ($15,000) value. Rights to specific
property for the personal property allowance and assets needed to make up a deficiency in the
property have priority over all claims against the estate, but the right to any assets to make up a
deficiency of exempt property abates as necessary to permit earlier payment of the family
allowance. These rights are in addition to any benefit or share passing to the surviving spouse or
children by intestate succession or by the decedent's will, unless otherwise provided by the
decedent in the will or other governing instrument.
History: 1978 Comp., § 45-2-403, enacted by Laws 1993, ch. 174, § 21; 1995, ch. 210, § 8;
1997, ch. 95, § 1; 1999, ch. 79, § 1; 2011, ch. 124, § 21.
45-2-501. Who may make will.
An individual eighteen or more years of age who is of sound mind or an emancipated minor who
is of sound mind may make a will.
History: 1953 Comp., § 32A-2-501, enacted by Laws 1975, ch. 257, § 2-501; repealed and
reenacted by Laws 1993, ch. 174, § 25; 2011, ch. 124, § 22.
45-2-502. Execution; witnessed wills.
Except as provided in Sections 45-2-506 and 45-2-513 NMSA 1978, a will must be:
A. in writing;
B. signed by the testator or in the testator's name by some other individual in the
testator's conscious presence and by the testator's direction; and
C. signed by at least two individuals, each of whom signed in the presence of the
testator and of each other after each witnessed the signing of the will as described in Subsection
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B of this section.
History: 1978 Comp., § 45-2-502, enacted by Laws 1993, ch. 174, § 26; 1995, ch. 210, § 11.
45-2-503. Reserved.
Compiler's notes. — Laws 1975, ch. 257, § 2-503, contained this section number, but no accompanying text.
45-2-504. Self-proved will.
A. A will may be simultaneously executed, attested and made self-proved by acknowledgment thereof by the
testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of
the state in which execution occurs and evidenced by the officer's certificate, under official seal, in substantially the
following form:
"I, ________________________, the testator, sign my name to this instrument this ____________ day of
______________, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute
this instrument as my will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as
my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound
mind and under no constraint or undue influence.
______________________________________________________________
Testator
We, ________________________, ________________________, the witnesses, sign our names to this
instrument, and being first duly sworn, do hereby declare to the undersigned authority that the testator signs and
executes this instrument as his will and that he signs it willingly (or willingly directs another to sign for him), and
that each of us, in the presence of the testator, and in the presence of each other hereby signs this will as witness to
the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound
mind and under no constraint or undue influence.
______________________________________________________________
Witness
______________________________________________________________
Witness
The State of ____________________
County of ________________________
Subscribed, sworn to and acknowledged before me by __________________, the testator, and subscribed and
sworn to before me by __________________ and __________________, witnesses, this ____________ day of
______________.
(Seal)
Signed ____________________________
______________________________________________________________
(Official capacity of officer".
B. An attested will may be made self-proved at any time after its execution by the acknowledgment thereof by the
testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the
laws of the state in which the acknowledgment occurs and evidenced by the officer's certificate, under official seal,
attached or annexed to the will in substantially the following form:
"The State of __________________
County of ________________________
We, __________________, __________________ and __________________, the testator and the witnesses,
respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby
declare to the undersigned authority that the testator signed and executed the instrument as the testator's will and that
he signed willingly (or willingly directed another to sign for him), and that he executed it as his free and voluntary
act for the purposes therein expressed, and that each of the witnesses, in the presence of the testator, and in the
presence of each other signed the will as witness, and that to the best of our knowledge the testator was at that time
eighteen years of age or older, of sound mind and under no constraint or undue influence.
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______________________________________________________________
Testator
______________________________________________________________
Witness
______________________________________________________________
Witness
Subscribed, sworn to and acknowledged before me by __________________, the testator, and subscribed and
sworn to before me by __________________ and __________________, witnesses, this ____________ of
______________.
(Seal)
Signed ____________________________
______________________________________________________________
(Official capacity of officer)".
C. A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will if
necessary to prove the will's due execution.
History: 1978 Comp., § 45-2-504, enacted by Laws 1993, ch. 174, § 27; 1995, ch. 210, § 12.
45-2-505. Who may witness.
A. An individual generally competent to be a witness may act as a witness to a will.
B. The signing of a will by an interested witness does not invalidate the will or any
provision of it.
History: 1978 Comp., § 45-2-505, enacted by Laws 1993, ch. 174, § 28.
45-2-506. Choice of law as to execution.
A written will is valid if executed in compliance with Section 45-2-502 NMSA 1978 or if its
execution complies with the law at the time of execution of the place where the will is executed
or of the law of the place where at the time of execution or at the time of death the testator is
domiciled or is a national.
History: 1978 Comp., § 45-2-506, enacted by Laws 1993, ch. 174, § 29.
45-2-507. Revocation by writing or by act.
A. A will or any part thereof is revoked:
(1) by executing a subsequent will that revokes the previous will or part
expressly or by inconsistency;
(2) by executing another subsequent document in the manner provided for in
Section 45-2-502 or 45-2-504 NMSA 1978, or both, that expressly revokes the previous will or
part thereof; or
(3) by performing a revocatory act on the will if the testator performed the act
with the intent and for the purpose of revoking the will or part or if another individual performed
the act in the testator's conscious presence and by the testator's direction. For purposes of this
paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating or
destroying the will or any part of it. A burning, tearing or canceling is a "revocatory act on the
will", whether or not the burn, tear or cancellation touched any of the words on the will.
B. If a subsequent will does not expressly revoke a previous will, the execution of the
subsequent will wholly revokes the previous will by inconsistency if the testator intended the
subsequent will to replace rather than supplement the previous will.
C. The testator is presumed to have intended a subsequent will to replace rather than
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supplement a previous will if the subsequent will makes a complete disposition of the testator's
estate. If this presumption arises and is not rebutted by clear and convincing evidence, the
previous will is revoked; only the subsequent will is operative on the testator's death.
D. The testator is presumed to have intended a subsequent will to supplement rather
than replace a previous will if the subsequent will does not make a complete disposition of the
testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence,
the subsequent will revokes the previous will only to the extent that the subsequent will is
inconsistent with the previous will; each will is fully operative on the testator's death to the
extent that the wills are not inconsistent.
History: 1953 Comp., § 32A-2-507, enacted by Laws 1975, ch. 257, § 2-507; repealed and
reenacted by Laws 1993, ch. 174, § 30; 2011, ch. 124, § 23.
45-2-513. Separate writing identifying devise of certain types of tangible personal
property.
A will may refer to a written statement or list to dispose of items of tangible personal property
not otherwise specifically disposed of by the will, other than money. To be admissible under this
section as evidence of the intended disposition, the writing must be signed by the testator and
must describe the items and the devisees with reasonable certainty. The writing may be:
A. referred to as one to be in existence at the time of the testator's death;
B. prepared before or after the execution of the will;
C. altered by the testator after its preparation; or
D. a writing that has no significance apart from its effect on the dispositions made by
the will.
History: 1978 Comp., § 45-2-513, enacted by Laws 1993, ch. 174, § 36.
45-2-515. Deposit of will with court in testator's lifetime.
A will may be deposited by the testator or his agent with the clerk of any district court in New
Mexico for safekeeping pursuant to rules of that court. The will shall be kept confidential.
During the testator's lifetime, a deposited will shall be delivered only to him or to a person
authorized in writing signed by him to receive the will. A conservator may be allowed to
examine a deposited will of a protected testator under district court procedures designed to
maintain the confidential character of the document to the extent possible and to assure that it
will be resealed and left on deposit after the examination. Upon being informed of the testator's
death, the district court clerk shall notify any person designated to receive the will and deliver it
to him on request, or the court clerk may deliver the will to the appropriate court.
History: 1978 Comp., § 45-2-515, enacted by Laws 1993, ch. 174, § 38.
45-2-516. Duty of custodian of will; liability.
A. Any person having custody of a will shall, as soon as he is informed of the death of the
testator, deliver the will to a person able to secure its probate or, if none is known, to an
appropriate court.
B. If any person having the custody of a will fails to produce the will as provided for in
Subsection A of this section, after receiving a reasonable notice to do so, he is liable to any
person aggrieved for the damages that may be sustained by the failure.
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C. Any person who refuses or fails to deliver a will after being ordered by the court in a
proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of
court.
History: 1978 Comp., § 45-2-516, enacted by Laws 1993, ch. 174, § 39.
45-2-709. Representation; per capita at each generation; per stirpes.
A. As used in this section:
(1) "deceased child" or "deceased descendant" means a child or a descendant
who either predeceased the distribution date or is deemed to have predeceased the distribution
date pursuant to the provisions of Section 45-2-702 NMSA 1978;
(2) "distribution date", with respect to an interest, means the time when the
interest is to take effect in possession or enjoyment. The distribution date need not occur at the
beginning or end of a calendar day, but can occur at a time during the course of a day; and
(3) "surviving ancestor", "surviving child" or "surviving descendant" means an
ancestor, a child or a descendant who neither predeceased the distribution date nor is deemed to
have predeceased the distribution date pursuant to the provisions of Section 45-2-702 NMSA
1978.
B. If an applicable statute or a governing instrument calls for property to be distributed
"by representation" or "per capita at each generation", the property is divided into as many equal
shares as there are:
(1) surviving descendants in the generation nearest to the designated ancestor
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 distribution date.
C. If a governing instrument calls for property to be distributed "per stirpes", the
property is divided into as many equal shares as there are:
(1) surviving children of the designated ancestor; and
(2) deceased children who left surviving descendants.
Each surviving child, if any, is allocated one share. The share of each deceased child with
surviving descendants is divided in the same manner, with subdivision repeating at each
succeeding generation until the property is fully allocated among surviving descendants.
D. For the purposes of Subsections B and C of this section, an individual who is
deceased and left no surviving descendant is disregarded and an individual who leaves a
surviving ancestor who is a descendant of the designated ancestor is not entitled to a share.
History: 1978 Comp., § 45-2-709 , enacted by Laws 1993, ch. 174, § 57; 1995, ch. 210, § 19;
2011, ch. 124, § 29.
45-2-803. Effect of homicide on intestate succession, wills, trusts, joint assets, life
insurance and beneficiary designations.
A. As used in this section:
(1) "disposition or appointment of property" includes a transfer of an item of property or
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any other benefit to a beneficiary designated in a governing instrument; and
(2) "revocable", with respect to a disposition, appointment, provision or nomination,
means one under which the decedent, at the time of or immediately before death, was alone
empowered, by law or under the governing instrument, to cancel the designation in favor of the
killer, whether or not the decedent was then empowered to designate the decedent's own self in
place of the decedent's killer and the decedent then had capacity to exercise the power.
B. An individual who feloniously and intentionally kills the decedent forfeits all benefits
pursuant to the provisions of Chapter 45, Article 2 NMSA 1978 with respect to the decedent's
estate, including an intestate share, an omitted spouse's or child's share, a family allowance and a
personal property allowance. If the decedent died intestate, the decedent's intestate estate passes
as if the killer disclaimed the killer's intestate share.
C. The felonious and intentional killing of the decedent:
(1) revokes any revocable:
(a) disposition or appointment of property made by the decedent to the killer in a
governing instrument;
(b) provision in a governing instrument executed by the decedent conferring a general or
nongeneral power of appointment on the killer; and
(c) nomination of the killer in a governing instrument executed by the decedent,
nominating or appointing the killer to serve in any fiduciary or representative capacity, including
a personal representative, executor, trustee or agent; and
(2) severs the interests of the decedent and killer in property held by them at the time of
the killing as joint tenants with the right of survivorship, transforming the interests of the
decedent and killer into equal tenancies in common.
D. A severance pursuant to the provisions of Paragraph (2) of Subsection C of this
section does not affect any third-party interest in property acquired for value and in good faith
reliance on an apparent title by survivorship in the killer unless a writing declaring the severance
has been noted, registered, filed or recorded in records appropriate to the kind and location of the
property that are relied upon in the ordinary course of transactions involving such property as
evidence of ownership.
E. Provisions of a governing instrument executed by the decedent are given effect as if
the killer disclaimed all provisions revoked by this section or, in the case of a revoked
nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent.
F. An acquisition of property or interest by a killer not covered by this section shall be
treated in accordance with the principle that a killer cannot profit from the killer's wrong.
G. After all right to appeal has been exhausted, a judgment of conviction establishing
criminal accountability for the felonious and intentional killing of the decedent conclusively
establishes the convicted individual as the decedent's killer for purposes of this section. In the
absence of a conviction, the court upon the petition of an interested person shall determine
whether under the preponderance of evidence standard the individual would be found criminally
accountable for the felonious and intentional killing of the decedent. If the court determines that
under that standard the individual would be found criminally accountable for the felonious and
intentional killing of the decedent, the determination conclusively establishes that individual as
the decedent's killer for purposes of this section.
H. A payor or other third party is not liable for having made a payment or transferred an
item of property or any other benefit to a beneficiary designated in a governing instrument
executed by the decedent affected by an intentional and felonious killing or for having taken any
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other action in good faith reliance on the validity of the governing instrument executed by the
decedent upon request and satisfactory proof of the decedent's death before the payor or other
third party received written notice of a claimed forfeiture or revocation under this section. A
payor or other third party is liable for a payment made or other action taken after the payor or
other third party received written notice of a claimed forfeiture or revocation under this section.
Written notice of a claimed forfeiture or revocation pursuant to the provisions of this section
shall be mailed to the payor's or other third party's main office or home by registered or certified
mail, return receipt requested, or served upon the payor or other third party in the same manner
as a summons in a civil action. Upon receipt of written notice of a claimed forfeiture or
revocation pursuant to the provisions of this section, a payor or other third party may pay any
amount owed or transfer or deposit any item of property held by it to or with the court having
jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have
been commenced, to or with the court having jurisdiction of probate proceedings relating to
decedents' estates located in the county of the decedent's residence. The court shall hold the
funds or item of property and, upon its determination pursuant to the provisions of this section,
shall order disbursement in accordance with the determination. Payments, transfers or deposits
made to or with the court discharge the payor or other third party from all claims for the value of
amounts paid to or items of property transferred to or deposited with the court.
I. A person who purchases property for value and without notice or who receives a
payment or other item of property in partial or full satisfaction of a legally enforceable obligation
is neither obligated pursuant to the provisions of this section to return the payment, item of
property or benefit nor liable pursuant to the provisions of this section for the amount of the
payment or the value of the item of property or benefit. But a person who, not for value, receives
a payment, item of property or any other benefit to which the person is not entitled pursuant to
the provisions of this section is obligated to return the payment, item of property or benefit or is
personally liable for the amount of the payment or the value of the item of property or benefit to
the person who is entitled to it pursuant to the provisions of this section.
J. If this section or any part of this section is preempted by federal law with respect to a
payment, an item of property or any other benefit covered by this section, a person who, not for
value, receives the payment, item of property or any other benefit to which the person is not
entitled pursuant to the provisions of this section is obligated to return the payment, item of
property or benefit or is personally liable for the amount of the payment or the value of the item
of property or benefit to the person who would have been entitled to it were this section or part
of this section not preempted.
History: 1953 Comp., § 32A-2-803, enacted by Laws 1975, ch. 257, § 2-803; repealed and
reenacted by Laws 1993, ch. 174, § 62; 1995, ch. 210, § 23; 2011, ch. 124, § 30.
45-2-804. Revocation of probate and nonprobate transfers by divorce; no revocation by
other changes of circumstances.
A. As used in this section:
(1) "disposition or appointment of property" includes a transfer of an item of property or
any other benefit to a beneficiary designated in a revocable trust or other governing instrument;
(2) "divorce or annulment" means a divorce or annulment, a dissolution or declaration
of invalidity of a marriage that would exclude the spouse as a surviving spouse within the
meaning of Section 45-2-802 NMSA 1978 or the commencement of a valid proceeding
concluded either before or after an individual's death by an order purporting to terminate all
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marital property rights, including a property division judgment entered pursuant to the provisions
of Section 40-4-20 NMSA 1978. A decree of separation that does not terminate the status of
husband and wife is not a divorce for purposes of this section;
(3) "divorced individual" includes an individual whose marriage has been annulled;
(4) "governing instrument" means a governing instrument executed by the divorced
individual before the divorce or annulment of the divorced individual's marriage to the former
spouse;
(5) "relative of the divorced individual's former spouse" means an individual who is
related to the divorced individual's former spouse by blood, adoption or affinity and who, after
the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity;
and
(6) "revocable", with respect to a disposition, appointment, provision or nomination,
means one under which the divorced individual, at the time of the divorce or annulment, was
alone empowered by law or under the governing instrument to cancel the designation in favor of
the former spouse or former spouse's relative whether or not the divorced individual was then
empowered to designate the divorced individual's own self in place of the former spouse or in
place of the former spouse's relative and whether or not the divorced individual then had the
capacity to exercise the power.
B. Except as provided by the express terms of a governing instrument, a court order or a
contract relating to the division of the marital estate made between the divorced individuals
before or after the marriage, divorce or annulment, the divorce or annulment of a marriage:
(1) revokes any revocable:
(a) disposition or appointment of property made by a divorced individual to the former
spouse in a governing instrument and any disposition or appointment created by law or in a
governing instrument to a relative of the divorced individual's former spouse;
(b) provision in a governing instrument conferring a general or nongeneral power of
appointment on the divorced individual's former spouse or on a relative of the divorced
individual's former spouse; and
(c) nomination in a governing instrument, nominating a divorced individual's former
spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or
representative capacity, including a personal representative, executor, trustee, conservator, agent
or guardian; and
(2) severs the interests of the former spouses in property held by them at the time of the
divorce or annulment as joint tenants with the right of survivorship, transforming the interests of
the former spouses into equal tenancies in common.
C. A severance pursuant to the provisions of Paragraph (2) of Subsection B of this
section does not affect any third-party interest in property acquired for value and in good faith
reliance on an apparent title by survivorship in the survivor of the former spouses unless a
writing declaring the severance has been noted, registered, filed or recorded in records
appropriate to the kind and location of the property that are relied upon in the ordinary course of
transactions involving such property as evidence of ownership.
D. Provisions of a governing instrument are given effect as if the former spouse and
relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of
a revoked nomination in a fiduciary or representative capacity, as if the former spouse and
relatives of the former spouse died immediately before the divorce or annulment.
E. Provisions revoked solely by this section are revived by the divorced individual's
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remarriage to the former spouse or by a nullification of the divorce or annulment.
F. No change of circumstances other than as described in this section and in Section 45-
2-803 NMSA 1978 effects a revocation.
G. A payor or other third party is not liable for having made a payment or transferred an
item of property or any other benefit to a beneficiary designated in a governing instrument
affected by a divorce, annulment or remarriage or for having taken any other action in good faith
reliance on the validity of the governing instrument before the payor or other third party received
written notice of the divorce, annulment or remarriage. A payor or other third party is liable for
a payment made or other action taken after the payor or other third party received written notice
of a claimed forfeiture or revocation pursuant to the provisions of this section.
Written notice of the divorce, annulment or remarriage pursuant to the provisions of this section
shall be mailed to the payor's or other third party's main office or home by registered or certified
mail, return receipt requested, or served upon the payor or other third party in the same manner
as a summons in a civil action. Upon receipt of the written notice of the divorce, annulment or
remarriage, a payor or other third party may pay any amount owed or transfer or deposit any item
of property held by it to or with the court having jurisdiction of the probate proceedings relating
to the decedent's estate or, if no proceedings have been commenced, to or with the court having
jurisdiction of probate proceedings relating to decedents' estates located in the county of the
decedent's residence. The court shall hold the funds or item of property and, upon its
determination pursuant to the provisions of this section, shall order disbursement or transfer in
accordance with the determination. Payments, transfers or deposits made to or with the court
discharge the payor or other third party from all claims for the value of amounts paid to or items
of property transferred to or deposited with the court.
H. A person who purchases property from a former spouse, relative of a former spouse
or any other person for value and without notice or who receives from a former spouse, relative
of a former spouse or any other person a payment or other item of property in partial or full
satisfaction of a legally enforceable obligation is neither obligated pursuant to the provisions of
this section to return the payment, item of property or benefit nor is liable pursuant to the
provisions of this section for the amount of the payment or the value of the item of property or
benefit. But a former spouse, relative of a former spouse or other person who, not for value,
received a payment, item of property or any other benefit to which that person is not entitled
pursuant to the provisions of this section is obligated to return the payment, item of property or
benefit or is personally liable for the amount of the payment or the value of the item of property
or benefit to the person who is entitled to it pursuant to the provisions of this section.
I. If this section or any part of this section is preempted by federal law with respect to a
payment, an item of property or any other benefit covered by this section, a former spouse,
relative of the former spouse or any other person who, not for value, received a payment, item of
property or any other benefit to which that person is not entitled pursuant to the provisions of this
section is obligated to return that payment, item of property or benefit or is personally liable for
the amount of the payment or the value of the item of property or benefit to the person who
would have been entitled to it were this section or part of this section not preempted.
History: 1978 Comp., § 45-2-804 , enacted by Laws 1993, ch. 174, § 63; 1995, ch. 210, § 24;
2011, ch. 124, § 31.
45-2-807. Death of spouse; community property.
A. Upon the death of either spouse, one-half of the community property belongs to the
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surviving spouse, and the other half is subject to the testamentary disposition of the decedent,
except that community property that is joint tenancy property under Subsection B of Section 40-
3-8 NMSA 1978 shall not be subject to the testamentary disposition of the decedent.
B. Upon the death of either spouse, the entire community property is subject to the
payment of community debts. The deceased spouse's separate debts and funeral expenses and the
charge and expenses of administration are to be satisfied first from his separate property,
excluding property held in joint tenancy. Should such property be insufficient, then the deceased
spouse's undivided one-half interest in the community property shall be liable.
C. The provisions of the 1984 amendments to this section shall not affect the right of
any creditor, which right accrued prior to the effective date of those amendments.
History: 1953 Comp., § 32A-2-804, enacted by Laws 1975, ch. 257, § 2-804; 1984, ch. 122, §
2; 1978 Comp., § 45-2-804 , recompiled as 1978 Comp., § 45-2-805 by Laws 1993, ch. 174, §
64; recompiled as 1978 Comp., § 45-2-807 by Laws 2011, ch. 124, § 32.
45-3-108. Probate, testacy and appointment proceedings; ultimate time limit.
A. No informal probate or appointment proceeding or formal testacy or appointment
proceeding, other than a proceeding to probate a will previously probated at the testator's
domicile or appointment proceedings relating to an estate in which there has been a prior
appointment, may be commenced more than three years after the decedent's death, except:
(1) if a previous proceeding was dismissed because of doubt about the fact of the
decedent's death, then appropriate probate, appointment or testacy proceedings may be
maintained at any time thereafter upon a finding that the decedent's death occurred before the
initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in
initiating the subsequent proceeding;
(2) appropriate probate, appointment or testacy proceedings may be maintained in
relation to the estate of an absent, disappeared or missing person for whose estate a conservator
has been appointed at any time within three years after the conservator becomes able to establish
the death of the protected person;
(3) a proceeding to contest an informally probated will and to secure appointment of the
person with legal priority for appointment in the event the contest is successful may be
commenced within the later of twelve months from the informal probate or three years from the
decedent's death;
(4) an informal appointment in an intestate proceeding or a formal testacy or
appointment proceeding may be commenced thereafter if no proceedings concerning the
succession or estate administration has occurred within the three-year period after the decedent's
death, but the personal representative has no right to possess estate assets as provided in Section
45-3-709 NMSA 1978 beyond that necessary to confirm title thereto in the successors to the
estate and claims other than expenses of administration may not be presented against the estate;
and
(5) a formal testacy proceeding may be commenced at any time after three years from
the decedent's death for the purpose of establishing an instrument to direct or control the
ownership of property passing or distributable after the decedent's death from one other than the
decedent when the property is to be appointed by the terms of the decedent's will or is to pass or
be distributed as a part of the decedent's estate or its transfer is otherwise to be controlled by the
terms of the decedent's will.
B. The limitations set out in Subsection A of this section do not apply to proceedings to
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construe probated wills or determine heirs of an intestate.
C. In cases pursuant to the provisions of Paragraph (1) or (2) of Subsection A of this
section, the date on which a testacy or appointment proceeding is properly commenced shall be
deemed to be the date of the decedent's death for purposes of other limitation provisions of the
Uniform Probate Code that relate to the date of death.
History: 1953 Comp., § 32A-3-108, enacted by Laws 1975, ch. 257, § 3-108; 1993, ch. 174, §
68; 1995, ch. 210, § 33; 2011, ch. 124, § 43.
45-3-201. Venue for first and subsequent estate proceedings; location of property.
A. Venue for the first informal or formal testacy or appointment proceedings after a
decedent's death is:
(1) in the county where the decedent had his domicile at the time of his death; or
(2) if the decedent was not domiciled in New Mexico, in any county where property
of the decedent was located at the time of his death.
B. Venue for all subsequent proceedings is in the place where the initial proceeding
occurred, unless the initial proceeding has been transferred as provided in Section 1-303 [45-1-
303 NMSA 1978] or Subsection C of this section.
C. If the first proceeding was informal, on petition of an interested person and after notice to
the proponent in the first proceeding, the district court in the place where the initial proceeding
occurred, upon finding that venue is improper, may transfer the proceeding and the file to a court
where venue is proper.
D. For the purpose of aiding determinations concerning location of assets which may be
relevant in cases involving non-domiciliaries, a debt, other than one evidenced by investment or
commercial paper or other instrument in favor of a non-domiciliary, is located where the debtor
resides or, if the debtor is a person other than an individual, at the place where it has its principal
office. Commercial paper, investment paper and other instruments are located where the
instrument is. An interest in property held in trust is located where the trustee may be sued.
History: 1953 Comp., § 32A-3-201, enacted by Laws 1975, ch. 257, § 3-201.
45-3-203. Priority among persons seeking appointment as personal representative.
A. Whether the proceedings are formal or informal, persons who are not disqualified
have priority for appointment in the following order:
(1) the person with priority as determined by a probated will, including a person
nominated by a power conferred in a will;
(2) the surviving spouse of the decedent who is a devisee of the decedent;
(3) other devisees of the decedent;
(4) the surviving spouse of the decedent;
(5) other heirs of the decedent; and
(6) on application or petition of an interested person other than a spouse, devisee or heir,
any qualified person.
B. An objection to an appointment may be made only in formal proceedings. In case of
objection, the priorities stated in Subsection A of this section apply except that:
(1) if the estate appears to be more than adequate to meet allowances and costs of
administration but inadequate to discharge anticipated unsecured claims, the court, on petition of
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creditors, may appoint any qualified person; and
(2) in case of objection to appointment of a person other than one whose priority is
determined by will by an heir or devisee appearing to have a substantial interest in the estate, the
court may appoint a person who is acceptable to heirs and devisees whose interests in the estate
appear to be worth in total more than half of the probable distributable value of the estate or, in
default of this accord, any suitable person.
C. A person entitled to letters under Paragraphs (2) through (5) of Subsection A of this
section or a person who has not reached the age of majority and who might be entitled to letters
but for the person's age may nominate a qualified person to act as personal representative by an
appropriate writing filed with the court and thereby confer the person's relative priority for
appointment on the person's nominee. Any person who has reached the age of majority may
renounce the right to nominate or to an appointment by an appropriate writing filed with the
court. When two or more persons entitled to letters under Paragraphs (2) through (5) of
Subsection A of this section share a priority, all those who do not renounce shall concur in
nominating another to act for them or in applying for appointment by an appropriate writing filed
with the court. The person so nominated shall have the same priority as those who nominated
the person. A nomination or renunciation shall be signed by each person making it, the person's
attorney or the person's representative authorized by Subsection D of this section.
D. Conservators of the estates of protected persons or, if there is no conservator, any
guardian except a guardian ad litem of a minor or incapacitated person may exercise the same
right to nominate, to object to another's appointment or to participate in determining the
preference of a majority in interest of the heirs and devisees that the protected person would have
if qualified for appointment.
E. Appointment of one who does not have highest priority, including highest priority
resulting from renunciation or nomination determined pursuant to this section, may be made only
in formal proceedings. Before appointing one without highest priority, the court shall determine
that those having highest priority, although given notice of the proceedings, have failed to
request appointment or to nominate another for appointment and that administration is necessary.
F. No person is qualified to serve as a personal representative who is:
(1) under the age of majority;
(2) a person whom the court finds unsuitable in formal proceedings; or
(3) a creditor of the decedent unless the appointment is to be made after forty-five days
have elapsed from the death of the decedent.
G. A personal representative appointed by a court of the decedent's domicile has priority
over all other persons except where the decedent's will nominates different persons to be
personal representatives in New Mexico and in the state of domicile. The domiciliary personal
representative may nominate another, who shall have the same priority as the domiciliary
personal representative.
H. This section governs priority for appointment of a successor personal representative
but does not apply to the selection of a special administrator.
History: 1953 Comp., § 32A-3-203, enacted by Laws 1975, ch. 257, § 3-203; 2009, ch. 159, §
25; 2011, ch. 124, § 44.
45-3-204. Demand for notice of order or filing concerning decedent's estate.
Any interested person desiring notice of any order or filing pertaining to a decedent's estate may
at any time after the death of the decedent file a demand for notice with the clerk of the court in
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which the proceedings for the decedent's estate are being conducted or in the district court of the
county where they would be pending if commenced. A person commencing a proceeding for a
decedent's estate in probate court shall inquire of the clerk of the district court for that county
whether any demand for notice has been filed prior to commencing a proceeding in the probate
court. The demand for notice shall state the name of the decedent, the nature of the demandant's
interest in the estate and the demandant's address or that of his attorney. The clerk shall mail a
copy of the demand to the personal representative if one has been appointed. After filing of a
demand, no order or filing to which the demand relates shall be made or accepted without notice
as prescribed in Section 45-1-401 NMSA 1978 to the demandant or his attorney. The validity of
an order which is issued, or filing which is accepted, without compliance with this requirement
shall not be affected by the error, but the applicant or petitioner receiving the order or the person
making the filing may be liable for any damage caused by the absence of notice. The
requirement of notice arising from a demand under this provision may be waived in writing by
the demandant and shall cease upon the termination of his interest in the estate.
History: 1953 Comp., § 32A-3-204, enacted by Laws 1975, ch. 257, § 3-204; 1983, ch. 194, §
4.
45-3-301. Informal probate or appointment proceedings; application; contents.
Applications for informal probate or informal appointment must be directed to the probate or
district court and verified by the applicant to be accurate and complete to the best of his
knowledge and belief as to the information found in Subsections A through F of this section.
A. Every application for informal probate of a will or for informal appointment of a
personal representative, other than a special or successor representative, shall contain the
following:
(1) a statement of the interest of the applicant;
(2) the name and date of death of the decedent; his age and the county and state of his
domicile at the time of death; and the names and addresses of the spouse, children, heirs and
devisees and the ages of any who are minors so far as known or ascertainable with reasonable
diligence by the applicant;
(3) if the decedent was not domiciled in New Mexico at the time of his death, a
statement showing venue;
(4) a statement identifying and indicating the address of any personal representative
of the decedent appointed in New Mexico or elsewhere whose appointment has not been
terminated;
(5) a statement indicating whether the applicant has received a demand for notice, or
is aware of any demand for notice, of any probate or appointment proceeding concerning the
decedent that may have been filed in New Mexico or elsewhere; and
(6) a statement that the time limit for informal probate or appointment as provided in
Sections 45-3-101 through 45-3-1204 NMSA 1978 has not expired either because three years or
less have passed since the decedent's death, or, if more than three years from death have passed,
that circumstances as described by Section 45-3-108 NMSA 1978 authorizing tardy probate or
appointment have occurred.
B. An application for informal probate of a will shall state the following in addition
to the statements required by Subsection A of this section:
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(1) that the original of the decedent's last will is in the possession of the court, or
accompanies the application, or that an authenticated copy of his will probated in another
jurisdiction accompanies the application;
(2) that the applicant, to the best of his knowledge, believes the will to have been
validly executed; and
(3) that after the exercise of reasonable diligence, the applicant is unaware of any
instrument revoking the will, and that the applicant believes that the instrument which is the
subject of the application is the decedent's last will.
C. An application for informal appointment of a personal representative to
administer an estate under a will shall describe the will by date of execution and state the time
and place of probate or the pending application or petition for probate. The application for
appointment shall adopt the statements in the application or petition for probate and state the
name, address and priority for appointment of the person whose appointment is sought.
D. An application for informal appointment of a personal representative in intestacy
shall state in addition to the statements required by Subsection A of this section:
(1) that after the exercise of a reasonable diligence, the applicant is unaware of any
unrevoked testamentary instrument relating to property having a situs in New Mexico under
Section 45-1-301 NMSA 1978; and
(2) the priority of the person whose appointment is sought and the names of any other
person having a prior or equal right to the appointment under Section 45-3-203 NMSA 1978.
E. An application for appointment of a personal representative to succeed a personal
representative appointed under a different testacy status shall refer to the order in the most recent
testacy proceeding, state the name and address of the person whose appointment is sought and of
the person whose appointment will be terminated if the application is granted, and describe the
priority of the applicant.
F. An application for appointment of a personal representative to succeed a personal
representative who has tendered a resignation as provided in Subsection C of Section 45-3-610
NMSA 1978 or whose appointment has been terminated by death or removal, shall:
(1) adopt the statements in the application or petition which led to the appointment of
the person being succeeded except as specifically changed or corrected;
(2) state the name and address of the person who seeks appointment as successor; and
(3) describe the priority of the applicant.
G. By verifying an application for informal probate, or informal appointment, the
applicant submits personally to the jurisdiction of the court in any proceeding for relief from
fraud relating to the application, or for perjury, that may be instituted against him.
History: 1953 Comp., § 32A-3-301, enacted by Laws 1975, ch. 257, § 3-301; 1976 (S.S.), ch.
37, § 6; 1978, ch. 159, § 4.
45-3-302. Informal probate; duty of court; effect of informal probate.
Upon receipt of an application requesting informal probate of a will, the probate or the district
court, upon making the findings required by Section 45-3-303 NMSA 1978, shall issue a written
statement of informal probate if at least one hundred twenty hours have elapsed since the
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decedent's death. Informal probate is conclusive as to all persons until superseded by an order in
a formal testacy proceeding. No defect in the application or procedure relating thereto which
leads to informal probate of a will renders the probate void.
History: 1953 Comp., § 32A-3-302, enacted by Laws 1975, ch. 257, § 3-302; 1976 (S.S.), ch.
37, § 7; 1978, ch. 159, § 5.
45-3-303. Informal probate; proof and findings required.
A. In an informal proceeding for original probate of a will, the probate or the district court
shall determine whether:
(1) the application is complete;
(2) the applicant has made oath or affirmation that the statements contained in the
application are true to the best of his knowledge and belief;
(3) the applicant appears from the application to be an interested person as defined in
Paragraph (2) [(23)] of Subsection A of Section 45-1-201 NMSA 1978;
(4) on the basis of the statements in the application, venue is proper;
(5) an original, duly executed and apparently unrevoked will is in the possession of
the probate or the district court;
(6) any notice required by Section 45-3-204 NMSA 1978 has been given; and
(7) it appears from the application that the time limit for original probate has not
expired.
B. The application shall be denied if it indicates that a personal representative has been
appointed in another county of New Mexico or, except as provided in Subsection D of this
section, if it appears that this or another will of the decedent has been the subject of a previous
informal probate order.
C. A will which appears to have the required signatures and which contains an attestation
clause showing that requirements of execution under Section 45-2-502 or 45-2-506 NMSA 1978
have been met shall be probated without further proof. In other cases, the probate or the district
court may presume execution if the will appears to have been properly executed, or it may accept
a sworn statement or affidavit of any person having knowledge of the circumstances of
execution, whether or not the person was a witness to the will.
D. Informal probate of a will which has been previously probated in another state or foreign
country may be granted at any time upon written application by any interested person, together
with deposit of an authenticated copy of the will and of the order or statement probating it from
the office or court where it was first probated.
E. A will from a place which does not provide for probate of a will after death and which is
not eligible for probate under Subsection A of this section, may be probated in New Mexico
upon receipt by the probate or the district court of a duly authenticated copy of the will and a
duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the
will has become operative under the law of the other place.
History: 1953 Comp., § 32A-3-303, enacted by Laws 1975, ch. 257, § 3-303; 1978, ch. 159, §
6.
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45-3-304. Reserved.
Compiler's notes. — Laws 1975, ch. 257, § 3-304, contained this section number, but no accompanying text.
45-3-305. Informal probate; court not satisfied.
The probate or the district court may decline application for informal probate of a will for any
reason. A declination of informal probate is not an adjudication and does not preclude formal
probate proceedings.
History: 1953 Comp., § 32A-3-305, enacted by Laws 1975, ch. 257, § 3-305; 1978, ch. 159, §
7.
45-3-306. Informal probate; notice requirements.
A. The applicant shall give notice as described by Section 45-1-401 NMSA 1978 of his
application for informal probate to any person demanding it pursuant to Section 45-3-204 NMSA
1978 and to any personal representative of the decedent whose appointment has not been
terminated. No other notice of informal probate is required.
B. If an informal probate is granted, within 30 days thereafter the applicant shall give
written information of the probate to the heirs and devisees. The information shall include the
name and address of the applicant, the name and location of the court granting the informal
probate, and the date of the probate. The information shall be delivered or sent by ordinary mail
to each of the heirs and devisees whose address is reasonably available to the applicant. No duty
to give information is incurred under this section if a personal representative is appointed who is
required to give written information pursuant to the provisions of Section 45-3-705 NMSA 1978.
An applicant's failure to give information as required by this section is a breach of the applicant's
duty to the heirs and devisees but does not affect the validity of the probate.
History: 1953 Comp., § 32A-3-306, enacted by Laws 1975, ch. 257, § 3-306; 1995, ch. 210, §
34.
45-3-307. Informal appointment proceedings; delay in order; duty of court; effect of
appointment.
A. Upon receipt of an application for informal appointment of a personal representative
(other than a special administrator as provided in Section 45-3-614 NMSA 1978), if at least one
hundred twenty hours have elapsed since the decedent's death, the probate or the district court,
after making the findings required by Section 45-3-308 NMSA 1978, shall appoint the applicant
subject to qualification and acceptance. However, if the decedent was a nonresident, the probate
or the district court shall delay the order of appointment until thirty days have elapsed since
death unless the personal representative appointed at the decedent's domicile is the applicant, or
unless the decedent's will directs that his estate be subject to the laws of New Mexico.
B. The status of personal representative and the powers and duties pertaining to the office
are fully established by informal appointment. An appointment, and the office of personal
representative created thereby, is subject to termination as provided in Sections 45-3-608 through
45-3-612 NMSA 1978, but is not subject to retroactive vacation.
History: 1953 Comp., § 32A-3-307, enacted by Laws 1975, ch. 257, § 3-307; 1976 (S.S.), ch.
37, § 8; 1978, ch. 159, § 8.
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45-3-308. Informal appointment proceedings; proof and findings required.
A. In informal appointment proceedings, the probate or the district court must determine
whether:
(1) the application for informal appointment of a personal representative is complete;
(2) the applicant has made oath or affirmation that the statements contained in the
application are true to the best of his knowledge and belief;
(3) the applicant appears from the application to be an interested person as defined in
Paragraph (20) [(23)] of Subsection A of Section 45-1-201 NMSA 1978;
(4) on the basis of the statements in the application, venue is proper;
(5) any will to which the requested appointment relates has been formally or
informally probated; but this requirement does not apply to the appointment of a special
administrator;
(6) any notice required by Section 45-3-204 NMSA 1978 has been given; and
(7) from the statements in the application, from the contents of the probated will, if
any, and from any nominations and renunciations pursuant to Section 45-3-203 NMSA 1978 that
have been filed before or at the time of the application, the person whose appointment is sought
has priority entitling him to the appointment.
B. Unless Section 45-3-612 NMSA 1978 controls, the application must be denied if it
indicates that a personal representative who has not filed a written statement of resignation as
provided in Subsection C of Section 45-3-610 NMSA 1978 has been appointed in New Mexico,
that (unless the applicant is the domiciliary personal representative or his nominee) the decedent
was not domiciled in New Mexico and that a personal representative whose appointment has not
been terminated has been appointed by a court in the state of domicile, or that other requirements
of this section have not been met.
C. If the applicant is the domiciliary personal representative and the decedent was not
domiciled in New Mexico, informal appointment proceedings may be allowed.
History: 1953 Comp., § 32A-3-308, enacted by Laws 1975, ch. 257, § 3-308; 1978, ch. 159, §
9.
45-3-309. Informal appointment proceedings; court not satisfied.
The probate or the district court may decline an application for informal appointment of a
personal representative for any reason. A declination of informal appointment is not an
adjudication and does not preclude appointment in formal proceedings.
History: 1953 Comp., § 32A-3-309, enacted by Laws 1975, ch. 257, § 3-309; 1978, ch. 159, §
10; 2011, ch. 124, § 45.
45-3-310. Informal appointment proceedings; notice requirements.
The applicant must give notice as described by Section 1-401 [45-1-401 NMSA 1978] of his
intention to seek an appointment informally to any person demanding it pursuant to Section 3-
204 [45-3-204 NMSA 1978]. No other notice of an informal appointment proceeding is required,
except that the personal representative shall give notice pursuant to the provisions of Section 3-
705 [45-3-705 NMSA 1978].
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History: 1953 Comp., § 32A-3-310, enacted by Laws 1975, ch. 257, § 3-310.
45-3-311. Informal appointment unavailable in certain cases.
If an application for informal appointment indicates the existence of a possible unrevoked
testamentary instrument which may relate to property subject to the laws of New Mexico, and
which is not filed for probate in the probate or the district court, the probate or the district court
shall decline the application; however, such declination of informal probate is not an
adjudication and does not preclude appointment in formal proceedings.
History: 1953 Comp., § 32A-3-311, enacted by Laws 1975, ch. 257, § 3-311; 1978, ch. 159, §
11.
45-3-613. Successor personal representative.
A. Sections 3-301 through 3-311 [45-3-301 to 45-3-311 NMSA 1978] and 3-401 through 3-
414 [45-3-401 to 45-3-414 NMSA 1978] govern proceedings for appointment of a personal
representative to succeed one whose appointment has been terminated.
B. After appointment and qualification, a successor personal representative shall be
substituted in all actions and proceedings to which the former personal representative was a
party, and no notice, process or claim which was given or served upon the former personal
representative need be given or served upon the successor in order to preserve any position or
right the person giving the notice or filing the claim may thereby have obtained or preserved with
reference to the former personal representative.
C. Except as otherwise ordered by the district court, the successor personal representative
has the powers and duties in respect to the continued administration which the former personal
representative would have had if his appointment had not been terminated.
History: 1953 Comp., § 32A-3-613, enacted by Laws 1975, ch. 257, § 3-613.
45-3-614. Special administrator; appointment.
A special administrator may be appointed:
A. informally by the probate court on the application of any interested person when
necessary to protect the estate of a decedent prior to the appointment of a general personal
representative or if a prior appointment has been terminated by death or disability as provided in
Section 3-609 [45-3-609 NMSA 1978]; or
B. in a formal proceeding by order of the district court on the petition of any
interested person and finding, after notice and hearing, that appointment is necessary to preserve
the estate or to secure its proper administration including its administration in circumstances
where a general personal representative cannot or should not act. If it appears to the district court
that an emergency exists, appointment may be ordered without notice.
History: 1953 Comp., § 32A-3-614, enacted by Laws 1975, ch. 257, § 3-614.
45-3-615. Special administrator; who may be appointed.
A. If a special administrator is to be appointed pending the probate of a will which is the
subject of a pending application or petition for probate, the person named personal representative
in the will shall be appointed if available, and qualified.
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B. In all other cases, any proper person may be appointed special administrator.
History: 1953 Comp., § 32A-3-615, enacted by Laws 1975, ch. 257, § 3-615.
45-3-616. Special administrator; appointed informally; powers and duties.
A special administrator appointed by the probate court in informal proceedings pursuant to
Subsection A of Section 3-614 [45-3-614 NMSA 1978] has the duty to collect and manage the
assets of the estate, to preserve them, to account for and to deliver such assets to the general
personal representative upon his qualification. The special administrator appointed in informal
proceedings has the power of a personal representative under the Probate Code [Chapter 45
NMSA 1978] necessary to perform his duties.
History: 1953 Comp., § 32A-3-616, enacted by Laws 1975, ch. 257, § 3-616.
45-3-617. Special administrator; formal proceedings; powers and duties.
A special administrator appointed by order of the district court in any formal proceeding has the
power of a general personal representative except as limited in the appointment and duties as
prescribed in the order. The appointment may be for a specified time, or to perform particular
acts or on other terms as the district court may direct.
History: 1953 Comp., § 32A-3-617, enacted by Laws 1975, ch. 257, § 3-617.
45-3-618. Termination of appointment; special administrator.
The appointment of a special administrator pursuant to Section 3-614 [45-3-614 NMSA 1978]
terminates in accordance with the provisions of the order of appointment or on the appointment
of a general personal representative. In other cases, the appointment of a special administrator is
subject to termination by resignation, or upon removal for cause, as provided in Sections 3-608
through 3-611 [45-3-608 to 45-3-611 NMSA 1978].
History: 1953 Comp., § 32A-3-618, enacted by Laws 1975, ch. 257, § 3-618.
45-3-702. Priority among different letters.
A person to whom general letters are rightly issued first has exclusive authority under the
letters until his appointment is terminated or modified. If, through error, general letters are issued
to another, the first rightly appointed representative may recover any property of the estate in the
hands of the representative subsequently appointed, but the acts of the erroneously-appointed
personal representative done in good faith before notice of the first letters are not void for want
of validity of appointment.
History: 1953 Comp., § 32A-3-702, enacted by Laws 1975, ch. 257, § 3-702.
45-3-703. General duties; relation and liability to persons interested in estate; standing
to sue.
A. A personal representative is a fiduciary who shall observe the same standards of care
applicable to trustees. A personal representative is under a duty to settle and distribute the estate
of a decedent in accordance with the terms of any probated and effective will and the Uniform
Probate Code and as expeditiously and efficiently as is consistent with the best interests of the
estate. The personal representative shall use the authority conferred upon the personal
representative by the Uniform Probate Code, the terms of the will, if any, and any order in
proceedings to which the personal representative is party for the best interests of successors to
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the estate.
B. A personal representative may not be surcharged for acts of administration or
distribution if the conduct in question was authorized at the time. Subject to other obligations of
administration, an informally probated will authorizes a personal representative to administer and
distribute the estate according to its terms.
C. An order of appointment of a personal representative, whether issued in informal or
formal proceedings, authorizes a personal representative to distribute apparently intestate assets
to the heirs of the decedent if, at the time of distribution, the personal representative is not aware
of:
(1) a pending testacy proceeding;
(2) a proceeding to vacate an order entered in an earlier testacy proceeding;
(3) a formal proceeding questioning the personal representative's appointment or fitness
to continue; or
(4) a supervised administration proceeding.
D. This section does not affect the duty of the personal representative to administer and
distribute the estate in accordance with the rights of claimants whose claims have been allowed,
the surviving spouse, any minor and dependent children and any pretermitted child of the
decedent.
E. Except as to proceedings that do not survive the death of the decedent, a personal
representative of a decedent domiciled in New Mexico at the decedent's death has the same
standing to sue and be sued in the courts of New Mexico and the courts of any other jurisdiction
as the decedent had immediately prior to death.
History: 1953 Comp., § 32A-3-703, enacted by Laws 1975, ch. 257, § 3-703; 2011, ch. 124, §
46.
45-3-705. Duty of personal representative; notice to heirs and devisees.
A. Not later than ten days after his appointment, every personal representative, except any
special administrator, shall give notice of his appointment to the heirs and devisees, including, if
there has been no formal testacy proceeding and if the personal representative was appointed on
the assumption that the decedent died intestate, the devisees in any will mentioned in the
application or petition for appointment of a personal representative.
B. The notice shall be delivered or mailed to each of the heirs and devisees whose address is
reasonably available to the personal representative. The duty does not extend to require notice to
persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the
estate. The notice shall:
(1) include the name and address of the personal representative;
(2) indicate that it is being sent to persons who have or may have some interest in the
estate being administered;
(3) indicate whether bond has been filed; and
(4) describe the court where papers relating to the estate are on file.
C. The notice shall state that the estate is being administered by the personal representative
pursuant to the provisions of the Uniform Probate Code [this chapter] without supervision by the
court but that recipients are entitled to information regarding the administration from the
personal representative and can petition the court in any matter relating to the estate, including
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distribution of assets and expenses of administration.
D. The personal representative shall file a statement with the appointing court giving the
names and addresses of those persons notified pursuant to Subsection A of this section.
E. The personal representative's failure to give notice pursuant to this section is a breach of
his duty to the persons concerned but does not affect the validity of his appointment, his powers
or other duties. A personal representative may inform other persons of his appointment by
delivery or mail.
History: 1953 Comp., § 32A-3-705, enacted by Laws 1975, ch. 257, § 3-705; 1993, ch. 174, §
69.
45-3-706. Duty of personal representative; inventory and appraisement.
A. Within three months after his appointment, a personal representative, who is not a special
administrator or a successor to another representative who has previously discharged this duty,
shall prepare an inventory of property owned by the decedent at the time of his death, listing it
with reasonable detail and indicating as to each listed item its estimated value as of the date of
the decedent's death and the type and amount of any encumbrance that may exist with reference
to any item.
B. The personal representative shall send a copy of the inventory to interested persons who
request it. He may also file the original of the inventory with the appropriate court.
History: 1953 Comp., § 32A-3-706, enacted by Laws 1975, ch. 257, § 3-706; 1976 (S.S.), ch.
37, § 9; 1977, ch. 121, § 7; 1983, ch. 194, § 5.
45-3-712. Improper exercise of power; breach of fiduciary duty.
If the exercise of power concerning the estate is improper, the personal representative is
liable to interested persons for damage or loss resulting from breach of his fiduciary duty. The
rights of purchasers and others dealing with a personal representative shall be determined as
provided in Sections 3-713 [45-3-713 NMSA 1978] and 3-714 [45-3-714 NMSA 1978].
History: 1953 Comp., § 32A-3-712, enacted by Laws 1975, ch. 257, § 3-712.
45-3-713. Sale, encumbrance or transaction involving conflict of interest; voidable;
exceptions.
A. Any sale or encumbrance to the personal representative, his spouse, agent or attorney, or
any corporation or trust in which he has a substantial beneficial interest, or any transaction which
is affected by a substantial conflict of interest on the part of the personal representative, is
voidable by any interested person except one who has consented after fair disclosure, unless:
(1) the will or a contract entered into by the decedent expressly authorized the
transaction; or
(2) the transaction is approved by the district court after notice to interested persons.
B. An interested person must petition the district court to void the sale, encumbrance or
transaction within the time limits set out by Section 3-1005 [45-3-1005 NMSA 1978].
History: 1953 Comp., § 32A-3-713, enacted by Laws 1975, ch. 257, § 3-713.
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45-3-715. Transactions authorized for personal representatives; exceptions.
A. Except as restricted or otherwise provided by the will or by an order in a formal
proceeding and subject to the priorities stated in Section 45-3-902 NMSA 1978, a personal
representative, acting reasonably for the benefit of the interested persons, may properly:
(1) retain assets owned by the decedent pending distribution or liquidation, including
those in which the representative is personally interested or which are otherwise improper for
trust investment;
(2) receive assets from fiduciaries or other sources;
(3) perform, compromise or refuse performance of the decedent's contracts that
continue as obligations of the estate, as he may determine under the circumstances. In
performing enforceable contracts by the decedent to convey or lease land, the personal
representative, among other possible courses of action, may:
(a) execute and deliver a deed of conveyance for cash payment of all sums remaining
due or the purchaser's note for the sum remaining due secured by a mortgage or deed of trust on
the land; or
(b) deliver a deed in escrow with directions that the proceeds, when paid in
accordance with the escrow agreement, be paid to the successors of the decedent as designated in
the escrow agreement;
(4) satisfy written charitable pledges of the decedent irrespective of whether the
pledges constituted binding obligations of the decedent or were properly presented as claims, if
in the judgment of the personal representative the decedent would have wanted the pledges
completed under the circumstances;
(5) if funds are not needed to meet debts and expenses currently payable and are not
immediately distributable, deposit or invest liquid assets of the estate, including money received
from the sale of other assets, in federally insured interest-bearing accounts, readily marketable
secured loan arrangements or other prudent investments which would be reasonable for use by
trustees generally;
(6) acquire or dispose of an asset, including land in New Mexico or another state, for
cash or on credit, at public or private sale, and manage, develop, improve, partition or change the
character of an estate asset;
(7) make ordinary or extraordinary repairs or alterations in buildings or other
structures, demolish any improvements, or raze existing or erect new party walls or buildings;
(8) subdivide, develop or dedicate land to public use, make or obtain the vacation of
plats and adjust boundaries, adjust differences in valuation on exchange or partition by giving or
receiving considerations or dedicate easements to public use without consideration;
(9) enter for any purpose into a lease as lessor or lessee, with or without option to
purchase or renew, for a term within or extending beyond the period of administration;
(10) enter into a lease or arrangement for exploration and removal of minerals or other
natural resources or enter into a pooling or unitization agreement;
(11) abandon property when, in the opinion of the personal representative, it is
valueless or is so encumbered or is in condition that it is of no benefit to the estate;
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(12) vote stocks or other securities in person or by general or limited proxy;
(13) pay calls, assessments and other sums chargeable or accruing against or on
account of securities unless barred by the provisions relating to claims;
(14) hold a security in the name of a nominee or in other form without disclosure of
the interest of the estate, but the personal representative is liable for any act of the nominee in
connection with the security so held;
(15) insure the assets of the estate against damage, loss and liability and himself
against liability as to third persons;
(16) borrow money with or without security to be repaid from the estate assets or
otherwise and advance money when necessary for the protection or preservation of the estate;
(17) effect a fair and reasonable compromise with any debtor or obligor or extend,
renew or in any manner modify the terms of any obligation owing to the estate. If the personal
representative holds a mortgage, pledge or other lien upon property of another person, he may, in
lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner of the
assets in satisfaction of the indebtedness secured by lien;
(18) pay taxes, assessments, compensation of the personal representative and other
expenses incident to the administration of the estate;
(19) sell or exercise stock subscription or conversion rights or consent, directly or
through a committee or other agent, to the reorganization, consolidation, merger, dissolution or
liquidation of a corporation or other business enterprise;
(20) allocate items of income or expense to either estate income or principal as
permitted or provided by law;
(21) employ persons, including attorneys, accountants, investment advisors, appraisers
or agents, even if they are associated with the personal representative, to advise or assist the
personal representative in the performance of his administrative duties; act without independent
investigation upon their recommendations; and, instead of acting personally, employ one or more
agents to perform any act of administration, whether or not discretionary;
(22) prosecute or defend claims or proceedings in any jurisdiction for the protection of
the estate and of the personal representative in the performance of his duties;
(23) sell, transfer, exchange or otherwise dispose of the estate or any interest in the
estate for cash or on credit or for part cash and part credit at public or private sale. Security shall
be taken for unpaid balances unless waived by order of the district court upon petition and good
cause shown;
(24) continue any unincorporated business or venture in which the decedent was
engaged at the time of his death:
(a) in the same business form for a period of not more than four months from the date
of appointment of a general personal representative if continuation is a reasonable means of
preserving the value of the business, including good will;
(b) in the same business form for any additional period of time that may be approved
by order of the district court in a formal proceeding to which the persons interested in the estate
are parties; or
(c) throughout the period of administration if the business is incorporated by the
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personal representative and if none of the probable distributees of the business who are
competent adults object to its incorporation and retention in the estate;
(25) incorporate any business or venture in which the decedent was engaged at the
time of his death;
(26) provide for exoneration of the personal representative from personal liability in
any contract entered into on behalf of the estate; and
(27) satisfy and settle claims and distribute the estate as provided in the Uniform
Probate Code [this chapter].
B. The powers granted in Subsection A of this section are given subject to those limitations
contained in other sections of the Uniform Probate Code.
History: 1953 Comp., § 32A-3-715, enacted by Laws 1975, ch. 257, § 3-715; 1995, ch. 210, § 37.
45-3-716. Powers and duties of successor personal representative.
A successor personal representative has the same power and duty as the original personal
representative to complete the administration and distribution of the estate, as expeditiously as
possible, but he shall not exercise any power expressly made personally to any personal
representative named in the will.
History: 1953 Comp., § 32A-3-716, enacted by Laws 1975, ch. 257, § 3-716.
45-3-717. Co-representatives; when joint action required.
A. If two or more persons are appointed co-representatives, the concurrence of all is
required, unless the will provides otherwise, on all acts connected with the administration and
distribution of the estate. This restriction does not apply when:
(1) any co-representative receives and receipts for property due the estate;
(2) the concurrence of all cannot readily be obtained in the time reasonably available
for emergency action necessary to preserve the estate; or
(3) a co-representative has been delegated to act for the others.
B. Persons dealing with a co-representative, if actually unaware that another has been
appointed to serve with him or if advised by the personal representative with whom they are
dealing that he has authority to act alone for any of the reasons mentioned herein, are as fully
protected as if the person with whom they dealt had been the sole personal representative.
C. A co-representative who abdicates his responsibility to coadminister the estate by a
blanket delegation breaches his duty to interested persons as provided by Section 3-703 [45-3-
703 NMSA 1978].
History: 1953 Comp., § 32A-3-717, enacted by Laws 1975, ch. 257, § 3-717.
45-3-719. Compensation for personal representatives.
A personal representative is entitled to reasonable compensation for his services. If a will
provides for compensation of the personal representative and there is no contract with the
decedent regarding compensation, he may renounce the provision before qualifying and be
entitled to reasonable compensation. A personal representative also may renounce his right to all
or any part of the compensation. A written renunciation of the fee may be filed with the court.
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History: 1978 Comp., § 45-3-719, enacted by Laws 1995, ch. 210, § 38.
45-3-720. Expenses in estate litigation.
If any personal representative or person nominated as a personal representative defends or
prosecutes any proceeding in good faith, whether successful or not, he is entitled to receive from
the estate his necessary expenses and disbursements including reasonable attorneys' fees
incurred.
History: 1978 Comp., § 45-3-720, enacted by Laws 1995, ch. 210, § 39.
45-3-721. Proceedings for review of employment and compensation.
After notice to all interested persons or on petition of an interested person or an appropriate
motion if administration is supervised, the court may review the propriety of employment of any
person by a personal representative including any attorney, auditor, investment advisor or other
specialized agent or assistant, the reasonableness of the compensation of any person so employed
or the reasonableness of the compensation determined by the personal representative for his own
services. Any person who has received excessive compensation from an estate for services
rendered may be ordered to make appropriate refunds.
History: 1978 Comp., § 45-3-721, enacted by Laws 1995, ch. 210, § 40.
45-3-801. Notice to creditors.
A. A personal representative shall give written notice by mail or other delivery to any known
creditor and to any creditor who is reasonably ascertainable by the personal representative within
three months after the personal representative's appointment. A personal representative shall
notify a creditor to present his claim within two months of the published notice, if given as
provided in Subsection B of this section, or within two months after the mailing or other delivery
of the notice, whichever is later, or be forever barred.
B. A personal representative, within a reasonable time after his appointment, may also
publish a notice to creditors once a week for two successive weeks in a newspaper of general
circulation in the county announcing the appointment and the personal representative's address
and the name of the decedent and notifying creditors of the estate to present their claims within
two months after the date of the first publication of the notice or be forever barred.
C. A personal representative who has proceeded in accordance with Subsection A of this
section is not liable to a creditor whose claim was not identified or to a successor of the decedent
for giving or failing to give notice pursuant to the provisions of this section.
History: 1953 Comp., § 32A-3-801, enacted by Laws 1975, ch. 257, § 3-801; 1993, ch. 174, §
71.
45-3-802. Statutes of limitations.
A. Unless an estate is insolvent, the personal representative, with the consent of all
successors whose interests would be affected, may waive any defense of limitations available to
the estate. If the defense is not waived, no claim that was barred by any statute of limitations at
the time of the decedent's death shall be allowed or paid.
B. The running of a statute of limitations measured from an event other than death or the
giving of notice to creditors is suspended for four months after the decedent's death but resumes
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thereafter as to claims not barred by other sections.
C. For purposes of a statute of limitations, the presentation of a claim pursuant to Section
45-3-804 NMSA 1978 is equivalent to commencement of a proceeding on the claim.
History: 1953 Comp., § 32A-3-802, enacted by Laws 1975, ch. 257, § 3-802; 1993, ch. 174, §
72; 1995, ch. 210, § 41.
45-3-803. Limitations on presentation of claims.
A. All claims against a decedent's estate that arose before the death of the decedent,
including claims of the state and any political subdivision of the state, whether due or to become
due, absolute or contingent, liquidated or unliquidated or founded on contract, tort or other legal
basis, if not barred earlier by another statute of limitations or nonclaim statute, are barred against
the estate, the personal representative and the heirs, devisees and nonprobate transferees of the
decedent unless presented within the earlier of the following:
(1) one year after the decedent's death; or
(2) the time provided by Subsection A of Section 45-3-801 NMSA 1978 for creditors
who are given actual notice and the time provided in Subsection B of Section 45-3-801 NMSA
1978 for all creditors barred by publication.
B. A claim described in Subsection A of this section that is barred by the nonclaim
statute of the decedent's domicile before the giving of notice to creditors in this state is barred in
this state.
C. All claims against a decedent's estate that arise at or after the death of the decedent,
including claims of the state and any political subdivision of the state, whether due or to become
due, absolute or contingent, liquidated or unliquidated or founded on contract, tort or other legal
basis, are barred against the estate, the personal representative and the heirs and devisees of the
decedent unless presented as follows:
(1) a claim based on a contract with the personal representative within four months after
performance by the personal representative is due; or
(2) any other claim within the later of four months after it arises or the time specified in
Paragraph (1) of this subsection.
D. Nothing in this section affects or prevents:
(1) any proceeding to enforce any mortgage, pledge or other lien upon property of the
estate;
(2) to the limits of the insurance protection only, a proceeding to establish liability of the
decedent or the personal representative for which the decedent or personal representative is
protected by liability insurance; or
(3) collection of compensation for services rendered and reimbursement for expenses
advanced by the personal representative or by the attorney or accountant for the personal
representative of the estate.
History: 1953 Comp., § 32A-3-803, enacted by Laws 1975, ch. 257, § 3-803; 1993, ch. 174, §
73; 2011, ch. 124, § 47.
45-3-804. Manner of presentation of claims.
Claims against a decedent's estate may be presented as follows:
A. the claimant may deliver or mail to the personal representative a written statement
of the claim indicating its basis, the name and address of the claimant and the amount claimed, or
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he may file a written statement of the claim with the appropriate court. The claim is presented on
the first to occur of receipt of the written statement of claim by the personal representative or the
filing of the claim with the appropriate court. If a claim is not yet due, the date when it will
become due shall be stated. If the claim is contingent or unliquidated, the nature of the
uncertainty shall be stated. If the claim is secured, the security shall be described. Failure to
describe correctly the security, the nature of any uncertainty and the due date of a claim not yet
due does not invalidate the presentation made;
B. the claimant, without the necessity of filing a claim, may commence a proceeding
against the personal representative in any court where the personal representative may be
subjected to jurisdiction, to obtain payment of his claim against the estate, but the
commencement of the proceeding must occur within the time limited for presenting the claim.
No presentation of claim is required in regard to matters claimed in proceedings against the
decedent which were pending at the time of his death; and
C. if a claim is presented under Subsection A of this section, no proceeding thereon
may be commenced more than sixty days after the personal representative has mailed a notice of
disallowance. However, in the case of a claim which is not presently due or which is contingent
or unliquidated, the personal representative may consent to an extension of the sixty-day period,
or, to avoid injustice, the district court on petition may order an extension of the sixty-day
period, but in no event shall the extension run beyond the applicable statute of limitations.
History: 1953 Comp., § 32A-3-804, enacted by Laws 1975, ch. 257, § 3-804; 1983, ch. 194, §
6.
45-3-805. Classification of claims.
A. If the applicable assets of the estate are insufficient to pay all claims in full, the personal
representative shall make payment in the following order:
(1) costs and expenses of administration, including compensation of personal
representatives and of persons employed by the personal representatives;
(2) reasonable funeral expenses;
(3) debts and taxes with preference under federal law;
(4) reasonable medical and hospital expenses of the last illness of the decedent,
including compensation of persons attending the decedent;
(5) debts and taxes with preference under other laws of New Mexico; and
(6) all other claims.
B. No preference shall be given in the payment of any claim over any other claim of the
same class, and a claim due and payable shall not be entitled to a preference over claims not due.
History: 1953 Comp., § 32A-3-805, enacted by Laws 1975, ch. 257, § 3-805; 1976 (S.S.), ch.
37, § 12; 1995, ch. 210, § 42.
45-3-806. Allowance of claims.
A. As to claims presented in the manner described in Section 45-3-804 NMSA 1978 within
the time limit prescribed in Section 45-3-803 NMSA 1978, the personal representative may mail
a notice to any claimant stating that the claim has been disallowed. If after allowing or
disallowing a claim the personal representative changes his decision concerning the claim, he
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shall notify the claimant. The personal representative may not change a disallowance of a claim
after the time for the claimant to file a petition for allowance or to commence a proceeding on
the claim has run and the claim has been barred. Every claim that is disallowed in whole or in
part by the personal representative is barred so far as not allowed unless the claimant files a
petition for allowance in the district court or commences a proceeding against the personal
representative not later than sixty days after the mailing of the notice of disallowance or partial
allowance. Failure of the personal representative to mail notice to a claimant of action on his
claim for sixty days after the time for original presentation of the claim has expired has the effect
of a notice of allowance.
B. After allowing or disallowing a claim the personal representative may change the
allowance or disallowance as hereafter provided. The personal representative may prior to
payment change the allowance to a disallowance in whole or in part but not after allowance by a
court order or judgment or an order directing payment of the claim. He shall notify the claimant
of the change to disallowance, and the disallowed claim is then subject to bar as provided in
Subsection A of this section. The personal representative may change a disallowance to an
allowance, in whole or in part, until it is barred pursuant to Subsection A of this section; after it
is barred, it may be allowed and paid only if the estate is solvent and all successors whose
interests would be affected consent.
C. Upon the petition of the personal representative or of a claimant in a proceeding for the
purpose, the district court may allow in whole or in part any claim presented to the personal
representative or filed with the clerk of the district court in due time and not barred by
Subsection A of this section. Notice in this proceeding shall be given to the claimant, the
personal representative and those other persons interested in the estate, as the court may direct by
order entered at the time the proceeding is commenced.
D. A judgment in a proceeding in another court against a personal representative to enforce a
claim against a decedent's estate is an allowance of the claim.
E. Unless otherwise provided in any judgment in another court entered against the personal
representative, allowed claims bear interest at the legal rate for the period commencing sixty
days after the time for original presentation of the claim has expired unless based on a contract
making a provision for interest, in which case they bear interest in accordance with that
provision.
History: 1953 Comp., § 32A-3-806, enacted by Laws 1975, ch. 257, § 3-806; 1993, ch. 174, §
74.
45-3-907. Distribution in kind; evidence.
If distribution in kind is made, the personal representative shall execute an instrument or
deed of distribution assigning, transferring or releasing the assets to the distributee as evidence of
the distributee's title to the property.
History: 1953 Comp., § 32A-3-907, enacted by Laws 1975, ch. 257, § 3-907.
45-3-912. Private agreements among successors to decedent binding on personal
representative.
Subject to the rights of creditors and taxing authorities, competent successors may agree among
themselves to alter the interests, shares or amounts to which they are entitled under the will of
the decedent, or under the laws of intestacy, in any way that they provide in a written contract
14-42
executed by all who are affected by its provisions. The personal representative shall abide by the
terms of the agreement subject to his obligation to administer the estate for the benefit of
creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his
office for the benefit of any successors of the decedent who are not parties. Personal
representatives of decedents' estates are not required to see to the performance of trusts if the
trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a
testamentary trust are successors for the purposes of this section. Nothing in this section relieves
trustees of any duties owed to beneficiaries of trusts.
History: 1953 Comp., § 32A-3-912, enacted by Laws 1975, ch. 257, § 3-912.
45-3-914. Disposition of unclaimed assets.
If an heir, devisee or claimant cannot be found, the personal representative shall distribute the
share of the missing person to his conservator, if any. Otherwise, the personal representative
shall sell the share of the missing person and distribute the proceeds to the state treasurer as
prescribed by the Uniform Unclaimed Property Act [7-8A-1 NMSA 1978].
History: 1953 Comp., § 32A-3-914, enacted by Laws 1975, ch. 257, § 3-914; 1993, ch. 174, §
78.
45-3-1003. Closing estates; by sworn statement of personal representative.
A. Unless prohibited by order of the district court and except for estates being administered
in supervised administration proceedings, a personal representative may close an estate by filing
with the court, no earlier than three months after the date of original appointment of a general
personal representative for the estate, a verified statement stating that the personal representative
or a previous personal representative has:
(1) determined that the time limited for presentation of creditors' claims has expired;
(2) fully administered the estate of the decedent by making payment, settlement or
other disposition of all claims that were presented, expenses of administration and estate,
inheritance and other death taxes, except as specified in the statement, and that the assets of the
estate have been distributed to the persons entitled. If any claims remain undischarged, the
statement shall state whether the personal representative has distributed the estate subject to
possible liability with the agreement of the distributees or it shall state in detail other
arrangements that have been made to accommodate outstanding liabilities; and
(3) sent a copy of the statement to all distributees of the estate and to all creditors or
other claimants of whom the personal representative is aware whose claims are neither paid nor
barred and has furnished a full account in writing of the personal representative's administration
to the distributees whose interests are affected thereby, including guardians ad litem appointed
pursuant to Section 45-1-403 NMSA 1978, conservators and guardians.
B. If no proceedings involving the personal representative are pending in the district court
one year after the closing statement is filed, the appointment of the personal representative
terminates.
History: 1953 Comp., § 32A-3-1003, enacted by Laws 1975, ch. 257, § 3-1003; 1983, ch. 194,
§ 7; 1993, ch. 174, § 81.
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45-3-1007. Certificate discharging liens securing fiduciary performance.
After his appointment has terminated, the personal representative, his sureties, or any successor
of either such person, upon the filing of a verified application showing, so far as is known by the
applicant, that no action concerning the estate is pending in any court, is entitled to receive a
certificate from the court that the personal representative appears to have fully administered the
estate in question. The certificate evidences discharge of any lien on any property given to secure
the obligation of the personal representative in lieu of bond or any surety, but does not preclude
action against the personal representative or the surety.
History: 1953 Comp., § 32A-3-1007, enacted by Laws 1975, ch. 257, § 3-1007.
45-3-1008. Subsequent administration.
If other property of the estate is discovered after an estate has been settled and the personal
representative discharged, or after one year after a closing statement has been filed, the district
court, upon petition of any interested person and upon notice as it directs, may appoint the same
or a successor personal representative to administer the subsequently discovered estate. If a new
appointment is made, unless the district court orders otherwise, the provisions of the Probate
Code [this chapter] apply as appropriate. However, no claim previously barred may be asserted
in the subsequent administration.
History: 1953 Comp., § 32A-3-1008, enacted by Laws 1975, ch. 257, § 3-1008.
45-3-1201. Collection of personal property by affidavit.
A. Thirty days after the death of a decedent, any person indebted to the decedent or
having possession of tangible personal property or an instrument evidencing a debt, obligation,
stock or chose in action belonging to the decedent shall make payment of the indebtedness or
deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or
chose in action to a person claiming to be the successor of the decedent upon being presented an
affidavit made by or on behalf of the successor stating that:
(1) the value of the entire estate, wherever located, less liens and encumbrances, does
not exceed fifty thousand dollars ($50,000);
(2) thirty days have elapsed since the death of the decedent;
(3) no application or petition for the appointment of a personal representative is pending
or has been granted in any jurisdiction; and
(4) the claiming successor is entitled to payment or delivery of the property.
B. A transfer agent of any security shall change the registered ownership on the books
of a corporation from the decedent to the successor or successors upon the presentation of an
affidavit as provided in Subsection A of this section.
C. The affidavit made pursuant to this section may not be used to perfect title to real
estate.
History: 1953 Comp., § 32A-3-1201, enacted by Laws 1975, ch. 257, § 3-1201; 1983, ch. 194,
§ 8; 1995, ch. 210, § 48; 2011, ch. 124, § 50.
45-3-1202. Effect of affidavit.
The person paying, delivering, transferring or issuing personal property or the evidence thereof
pursuant to affidavit is discharged and released to the same extent as if he dealt with a personal
representative of the decedent. He is not required to see to the application of the personal
14-44
property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any
person to whom an affidavit is delivered refuses to pay, deliver, transfer or issue any personal
property or evidence thereof, it may be recovered or its payment, delivery, transfer or issuance
compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of
the persons entitled thereto. Any person to whom payment, delivery, transfer or issuance is made
is answerable and accountable therefor to any personal representative of the estate or to any other
person having a superior right.
History: 1953 Comp., § 32A-3-1202, enacted by Laws 1975, ch. 257, § 3-1202.
45-3-1203. Small estates; summary administrative procedure.
If it appears from the inventory and appraisal that the value of the entire estate, less liens and
encumbrances, does not exceed the family allowance, personal property allowance, costs and
expenses of administration, reasonable and necessary medical and hospital expenses of the last
illness of the decedent and reasonable funeral expenses, the personal representative, without
giving notice to creditors, may immediately disburse and distribute the estate to the persons
entitled thereto and file a closing statement as provided in Section 3-1204 [45-3-1204 NMSA
1978].
History: 1953 Comp., § 32A-3-1203, enacted by Laws 1975, ch. 257, § 3-1203.
45-3-1204. Small estates; closing by sworn statement of personal representative.
A. Unless prohibited by order of the district court and except for estates being administered
by supervised personal representatives, a personal representative may close an estate
administered under the summary procedures of Section 45-3-1203 NMSA 1978 by filing with
the court, at any time after disbursement and distribution of the estate, a verified statement
stating that:
(1) to the best knowledge of the personal representative, the value of the entire estate,
less liens and encumbrances, did not exceed the family allowance, personal property allowance,
costs and expenses of administration, reasonable necessary medical and hospital expenses of the
last illness of the decedent and reasonable funeral expenses;
(2) the personal representative has fully administered the estate by disbursing and
distributing it to the persons entitled thereto; and
(3) the personal representative has sent a copy of the closing statement to all
distributees of the estate and to all creditors or other claimants of whom he is aware whose
claims are neither paid nor barred and has furnished a full account in writing of his
administration to the distributees whose interests are affected.
B. If no actions or proceedings involving the personal representative are pending in court
one year after the closing statement is filed, the appointment of the personal representative
terminates.
C. A closing statement filed under this section has the same effect as one filed under Section
45-3-1003 NMSA 1978.
History: 1953 Comp., § 32A-3-1204, enacted by Laws 1975, ch. 257, § 3-1204; 1983, ch. 194,
§ 9.
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45-3-1205. Small estates; transfer of title to homestead to surviving spouse by affidavit.
A. Where a husband and wife own a homestead as community property and when either
the husband or wife dies intestate or dies testate and by the husband's or wife's will devises the
husband's or wife's interest in the homestead to the surviving spouse, the homestead passes to the
survivor and no probate or administration is necessary.
B. Six months after the death of a decedent, the surviving spouse may record with the
county clerk in the county in which the homestead is located an affidavit describing the real
property and stating that:
(1) six months have elapsed since the death of the decedent as shown on the death
certificate;
(2) the affiant and the decedent were at the time of the death of the decedent married
and owned the homestead as community property;
(3) a copy of the deed with a legal description of the homestead is attached to the
affidavit;
(4) but for the homestead, the decedent's estate need not be subject to any judicial
probate proceeding either in district court or probate court;
(5) no application or petition for appointment of a personal representative or for
admittance of a will to probate is pending or has been granted in any jurisdiction;
(6) funeral expenses, expenses of last illness and all unsecured debts of the decedent
have been paid;
(7) the affiant is the surviving spouse of the decedent and is entitled to title to the
homestead by intestate succession as provided in Section 45-2-102 NMSA 1978 or by devise
under a valid last will of the decedent, the original of which is attached to the affidavit;
(8) no other person has a right to the interest of the decedent in the described property;
(9) no federal or state tax is due on the decedent's estate; and
(10) the affiant affirms that all statements in the affidavit are true and correct and further
acknowledges that any false statement may subject the person to penalties relating to perjury and
subornation of perjury.
C. As used in this section, "homestead" means the principal place of residence of the
decedent or surviving spouse or the last principal place of residence if neither the decedent nor
the surviving spouse is residing in that residence because of illness or incapacitation and that
consists of one or more dwellings together with appurtenant structures, the land underlying both
the dwellings and the appurtenant structures and a quantity of land reasonably necessary for
parking and other uses that facilitates the use of the dwellings and appurtenant structures, and
provided the full value of this property as assessed for property taxation purposes does not
exceed five hundred thousand dollars ($500,000).
History: 1978 Comp., § 45-3-1205, enacted by Laws 1985, ch. 12, § 1; 1985, ch. 132, § 1;
2011, ch. 124, § 51; 2011, ch. 134, § 18.
45-3-1206. Effect of affidavit.
A purchaser of real property from or lender to the surviving spouse designated as such in the
affidavit recorded under Section 45-3-1205 NMSA 1978 is entitled to the same protection as a
person purchasing from or lending to a distributee who has received a deed of distribution from a
personal representative as provided in Section 45-3-910 NMSA 1978.
History: 1978 Comp., § 45-3-1206, enacted by Laws 1985, ch. 12, § 2; 1985, ch. 132, § 2.
14-46
45-4-201. Payment of debt and delivery of property to domiciliary foreign personal
representative without local administration.
At any time after the expiration of sixty days from the death of a nonresident decedent, any
person indebted to the estate of the nonresident decedent or having possession or control of
personal property, or of an instrument evidencing a debt, obligation, stock or chose in action
belonging to the estate of the nonresident decedent, may pay the debt, deliver the personal
property, or the instrument evidencing the debt, obligation, stock or chose in action, to the
domiciliary foreign personal representative of the nonresident decedent upon being presented
with proof of his appointment and an affidavit made by or on behalf of the representative
stating:
A. the date of the death of the nonresident decedent;
B. that no local administration, or application or petition therefor, is pending in this
state; and
C. that the domiciliary foreign personal representative is entitled to payment or
delivery.
History: 1953 Comp., § 32A-4-201, enacted by Laws 1975, ch. 257, § 4-201.
45-4-202. Payment or delivery discharges.
Payment or delivery made in good faith on the basis of the proof of authority and affidavit
releases the debtor or person having possession of the personal property of his obligation to the
same extent as if payment or delivery had been made to a local personal representative.
History: 1953 Comp., § 32A-4-202, enacted by Laws 1975, ch. 257, § 4-202.
45-4-203. Resident creditor notice.
Payment or delivery under Section 4-201 [45-4-201 NMSA 1978] may not be made if a resident
creditor of the nonresident decedent has notified the debtor of the nonresident decedent or the
person having possession of the personal property belonging to the nonresident decedent that the
debt should not be paid nor the property delivered to the domiciliary foreign personal
representative.
History: 1953 Comp., § 32A-4-203, enacted by Laws 1975, ch. 257, § 4-203.
45-4-204. Proof of authority; bond.
If no local administration or application or petition therefor is pending in New Mexico, a
domiciliary foreign personal representative may file with the court of a county in which property
belonging to the decedent is located authenticated copies of his appointment and of any official
bond he has given and a statement of the domiciliary foreign personal representative's address.
History: 1953 Comp., § 32A-4-204, enacted by Laws 1975, ch. 257, § 4-204; 1983, ch. 194, §
11.
45-4-205. Powers.
A domiciliary foreign personal representative who has complied with Section 4-204 [45-4-204
NMSA 1978] may exercise as to assets in New Mexico all powers of a local personal
representative and may maintain actions and proceedings in New Mexico subject to any
14-47
conditions imposed upon nonresident parties generally.
History: 1953 Comp., § 32A-4-205, enacted by Laws 1975, ch. 257, § 4-205.
45-4-206. Power of representatives in transition.
A. The power of a domiciliary foreign personal representative under Section 4-201 [45-
4-201 NMSA 1978] or 4-205 [45-4-205 NMSA 1978] shall be exercised only if there is no
administration or application for administration pending in New Mexico. An application or
petition for local administration of the estate terminates the power of the foreign personal
representative to act under Section 4-205, but the district court may allow the foreign personal
representative to exercise limited powers to preserve the estate.
B. No person who, before receiving actual notice of a pending local administration, has
changed his position in reliance upon the powers of a foreign personal representative shall be
prejudiced by reason of the application or petition for, or grant of, local administration.
C. The local personal representative is subject to all duties and obligations which have
accrued by virtue of the exercise of the powers by the foreign personal representative and may be
substituted for him in any action or proceedings in New Mexico.
History: 1953 Comp., § 32A-4-206, enacted by Laws 1975, ch. 257, § 4-206.
45-4-207. Ancillary and other local administrations; provisions governing.
A. Upon the filing of an authenticated copy of the will, if any, and an authenticated copy
of the domiciliary letters with the court, a foreign personal representative may be granted
ancillary letters of administration in formal proceedings in the same manner as provided in
Section 3-414 [45-3-414 NMSA 1978] and subject to any bond requirement as provided in
Sections 3-603 and 3-604 [45-3-603 and 45-3-604 NMSA 1978].
B. In respect to a nonresident decedent, the provisions of Sections 3-101 through 3-1204
[45-3-101 to 45-3-1204 NMSA 1978] govern:
(1) proceedings, if any, in a court of New Mexico for probate of the will, appointment,
removal, supervision and discharge of the local personal representative, and any other order
concerning the estate; and
(2) the status, powers and duties and liabilities of any local personal representative and
the rights of claimants, purchasers, distributees and others in regard to a local administration.
History: 1953 Comp., § 32A-4-207, enacted by Laws 1975, ch. 257, § 4-207.
14.3 Statutes Concerning Safe Deposit Boxes
58-1-11. Access by fiduciaries.
A. Where access to a safe deposit box is requested by one or more persons acting as
fiduciaries, the lessor may, except as otherwise expressly provided in the lease or the writings
pursuant to which such fiduciaries are acting, allow access thereto and removal of the contents of
the safe deposit box upon obtaining proper receipt from:
(1) any one or more of the persons acting as executors or administrators;
(2) any one or more of the persons otherwise acting as fiduciaries when authorized in
writing signed by all other persons so acting; or
(3) any agent authorized in writing signed by all of the persons acting as fiduciaries.
14-48
B. No lessor shall be liable for damages for allowing or refusing access or removal of the
contents of the safety deposit box under the provisions of Subsection A of this section.
History: 1953 Comp., § 48-22-11, enacted by Laws 1963, ch. 305, § 11.
58-1-14. Search procedure on death.
A. A lessor shall permit the person named in a court order for the purpose, or if no order has
been served upon the lessor, the spouse, a parent, an adult descendant or a person named as an
executor in a copy of a purported will produced by him, to open and examine the contents of a
safe deposit box leased by a decedent, or any documents delivered by a decedent for
safekeeping, in the presence of an officer of the lessor; and the lessor, if so requested by such
person, may deliver upon execution of receipt therefor:
(1) any writing purporting to be a will of the decedent;
(2) any writing purporting to be a deed to a burial plot or to give burial instructions to
the person making the request for a search; and
(3) any document purporting to be an insurance policy on the life of the decedent to
the beneficiary named therein.
B. No other contents shall be removed, pursuant to this section except at the lessor's
liability, until a special administrator, an administrator or executor qualifies and makes claim to
the contents.
History: 1953 Comp., § 48-22-14, enacted by Laws 1963, ch. 305, § 14.
58-11A-4. Search procedure upon death of lessee.
A. A lessor shall permit the person named in a court order, or if no order has been served
upon the lessor, the spouse, parent, an adult descendant or a person named as a personal
representative in a copy of a purported will produced by him, to open and examine the contents
of a safe deposit box leased by a decedent or any documents delivered by a decedent for
safekeeping, in the presence of an officer of the lessor. The lessor, if so requested by that person,
may deliver upon execution of a receipt:
(1) any writing purported to be a will of the decedent;
(2) any writing purported to be a deed to a burial plot or burial instructions to the
person making the request for a search; or
(3) any document purported to be an insurance policy on the life of the decedent to
the person named as a beneficiary in the policy.
B. No other contents of a safe deposit box shall be removed pursuant to this section, except
as provided in the Probate Code [Chapter 45 NMSA 1978].
History: Laws 1991, ch. 51, § 24.
15-1
CHAPTER 15
Resources
This chapter provides:
Probate resource materials and sources.
Additional state and federal government resources.
15.1 Probate Resource Materials
Materials
Source
Uniform Probate Code
New Mexico Statutes Annotated
Website for free access to New Mexico laws and rules:
http://www.nmonesource.com/nmpublic/gateway.dll/?f=template
s&fn=default.htm
or purchase a copy from:
New Mexico Compilation Commission
4355 Center Place
Santa Fe, NM 87507-9706
Phone: (505) 827-4821
Website: www.nmcompcomm.us
Probate Forms
New Mexico Supreme Court
General Website: http://nmsupremecourt.nmcourts.gov
Click on ―Rules, Forms and Opinions‖ then ―Forms‖ then
―Probate Court.‖
Direct link to probate forms is:
http://nmsupremecourt.nmcourts.gov/legal-
forms/vprobate_code.php
Bernalillo County
Probate Court (aka
Court of Wills, Estates
& Probate)
Website: http://www.bernco.gov/probate-judges-office/
The court website includes helpful information for pro se
applicants who use the court, newspaper columns about probate
topics, a link to the pro se forms, and other useful resources.
15-2
New Mexico Probate
Judges Manual
New Mexico Judicial Education Center
MSC11 6060
1 University of New Mexico
Albuquerque, NM 87131-0001
Phone: (505) 277-1052
Fax: (505) 277-7064
Website: http://jec.unm.edu/
Probate Judges Manual online at:
http://jec.unm.edu/manuals-resources
New Mexico
Association of Counties
Website: http://www.nmcounties.org/
613 Old Santa Fe Trail
Santa Fe NM 87505
Phone: (505) 983-2101 or 877-983-2101 (toll free)
Email: [email protected]
National College of
Probate Judges
Website: http://ncpj.org/
Email: [email protected]
15.2 Additional State and Federal Government Resources
New Mexico
Agencies
Contact Information
Disciplinary Board of
State Bar (complaints
against attorneys)
20 First Plaza Center NW # 710
Albuquerque, NM 87102
Phone: (505) 842-5781
Website: www.nmdisboard.org/
Judicial Standards
Commission
P.O. Box 27248
Albuquerque, NM 87125-7248
Phone: (505) 222-9353
Website: http://www.nmjsc.org
Motor Vehicle Division,
Taxation and Revenue
Department
Phone: 1-888-683-4636
Website: http://www.mvd.newmexico.gov/Pages/Home.aspx
15-3
Taxation and Revenue
Department
Phone: (505) 841-6200 (Albuquerque)
Phone: (505) 827-0700 (General Inquiries & Santa Fe)
Website: http://www.tax.newmexico.gov/Pages/TRD-
Homepage.aspx
Unauthorized Practice
of Law Reports
State Bar of New Mexico, Office of the General Counsel
P.O. Box 92860
Albuquerque, NM 87199-2860
Phone: (505) 797-6050
Unclaimed Property
Division
Phone: (505) 827-0762
Email: [email protected] or [email protected]
Website: http://www.tax.newmexico.gov/Online-
Services/Pages/Unclaimed-Property-Search.aspx
or directly to missingmoney.com
Vital Records and
Health Statistics Office
(for death certificates) of
N.M. Department of
Health
Phone: (505) 841-4183, (505) 841-4185 (Albuquerque)
Phone: (505) 827-0121 (Santa Fe), (866) 534-0051 (toll free)
Website: www.health.state.nm.us or http://vitalrecordsnm.org/
(click on ―Death Certificates‖) or link directly at:
http://vitalrecordsnm.org/death.shtml
Federal Agencies
Contact Information
Internal Revenue
Service (IRS)
Phone: 1-800-829-1040
Website: www.irs.treas.gov
Medicare (U.S.
Department of Health
and Human Services)
Phone: 1-800-633-4227
Website: www.medicare.gov
Social Security
Administration
Phone: 1-800-772-1213
Website: www.ssa.gov
U.S. Department of
Veterans Affairs
Phone: 1-800-827-1000
Website: www.va.gov
15-4
