2018 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 3 - Probate of Wills and Administration
Section 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 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.

Official comments. — See Commissioners on Uniform State Law official comment to 3-108 UPC.

Compiler's notes. — This section includes within its scope some of the functions of former 31-8-3 and 31-8-4, 1953 Comp.

Cross references. — For waiver and suspension of statute of limitations, see 45-3-802 NMSA 1978.

The 2011 amendment, effective January 1, 2012, in Subsection A(4), excepted an informal appointment in an intestate proceeding from the three-year time limit.

The 1995 amendment, effective July 1, 1995, in Subsection A, deleted former Paragraph (4), relating to commencement of a formal testacy proceeding if no proceeding concerning the succession or administration of the estate has occurred within three years after descendant's death, and added Paragraph (4) and Paragraph (5).

The 1993 amendment, effective July 1, 1993, added Paragraph (4) of Subsection A; substituted "pursuant to the provisions of Paragraph (1) or (2)" for "under Paragraphs (1) or (2)" in Subsection B; and made minor stylistic changes.

Nonclaim statutes do not operate against state or subdivisions. — Ordinary nonclaim statute barring recovery on a claim not presented and acted upon by a personal representative within a time fixed by statute does not operate against the state or its legal subdivisions and agencies. In re Will of Bogert, 1958-NMSC-104, 64 N.M. 438, 329 P.2d 1023 (decided under former law).

Claim barred by limitations provision. — In a proceeding for an adjudication of intestacy and appointment of a personal representative filed more than six years after decedent passed away, a petitioner's claim seeking approval of a claim affecting property passing to decedent's heirs, or alternatively for money damages, was barred by Subsection A(4) of this section. Chavez v. Baca, 1999-NMCA-082, 127 N.M. 535, 984 P.2d 782.

Formal testacy proceeding takes precedence. — A will contestant's petition for a formal testacy proceeding filed pursuant to 45-3-401 NMSA 1978 and within the three-year limit of this section took precedence over a personal representative's petition for settlement and distribution of the estate filed pursuant to 45-3-1001 NMSA 1978. Vieira v. Estate of Cantu, 1997-NMCA-042, 123 N.M. 342, 940 P.2d 190.

Extra judicial limitations on scope of proceedings was improper. — Where the decedent's will made devises of personal property to persons other than the decedent's spouse and devised the remainder of the decedent's estate to a trust; pursuant to 45-3-108(A)(4) NMSA 1978, the decedent's spouse filed a petition to probate the decedent's will and appoint a personal administrator more than four years after the decedent's death for the limited purpose of confirming title to the assets of the estate in the successors to the estate; when the petition was filed, there were no assets in the estate to which title could be confirmed because the decedent's assets had been transferred to the trust upon the decedent's death; the spouse claimed that there had never been a determination of the what assets had belonged to the decedent as separate property or as the decedent's share of community property and it was unclear whether decedent had improperly disposed of the spouse's share of community property; and the district court restricted the personal representative's investigation of the estate's assets to the assets that had not previously been transferred to the trust, the district court erroneously concluded that Subparagraph (4) prevented the personal representative from investigating what assets were owned by the decedent at the time of the decedent's death, regardless of who was in possession of the assets at that time, and precluded the personal representative from investigating the propriety of the transfer of estate assets into the trust. Puri v. Khalsa, 2013-NMCA-104, cert. denied, 2013-NMCERT-010.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Amendment of claim against decedent's estate after expiration of time for filing claims, 56 A.L.R.2d 627.

Appealability of order of court possessing probate jurisdiction allowing or denying tardy presentation of claim to personal representative, 66 A.L.R.2d 659.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

33 C.J.S. Executors and Administrators §§ 33, 52; 95 C.J.S. Wills § 354.