2018 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 5 - Protection of Persons Under Disability and Their Property
Section 45-5-428 - Claims against protected person; enforcement.
A. A conservator must pay from the estate all just claims against the estate and against the protected person arising before or after the conservatorship upon their presentation and allowance. A claim may be presented by either of the following methods:
(1) the claimant may deliver or mail to the conservator a written statement of the claim indicating its basis, the name and address of the claimant and the amount claimed; or
(2) the claimant may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court and deliver or mail a copy of the statement to the conservator.
A claim is deemed presented upon receipt of the written statement of claim by the conservator, or the filing of the claim with district court, whichever occurs first. A presented claim is allowed, if it is not disallowed by written statement mailed by the conservator to the claimant within sixty days after its presentation. The presentation of a claim tolls any statute of limitation relating to the claim until thirty days after its disallowance.
B. A claimant whose claim has not been paid may petition the court for determination of his claim at any time before it is barred by the applicable statute of limitation, and, upon due proof, procure an order for its allowance and payment from the estate. If a proceeding is pending against a protected person at the time of appointment of a conservator or is initiated against the protected person thereafter, the moving party must give notice of the proceeding to the conservator if the outcome is to constitute a claim against the estate.
C. If it appears that the estate in conservatorship is likely to be exhausted before all claims and expenses of administration are paid, such claims and expenses shall be paid in the following order of priority:
(1) expenses of administration, including fees for the conservator and his attorney;
(2) tax claims with preference under federal law;
(3) claims for the support, education or care of the protected person or his dependents, on a pro rata basis;
(4) tax claims with preference under state law; and
(5) all other claims on a pro rata basis.
History: 1953 Comp., § 32A-5-428, enacted by Laws 1975, ch. 257, § 5-428; 1976 (S.S.), ch. 37, § 15.
Reasonableness of attorneys' fees. — Award of $150, rather than requested $1,150, to an attorney for services rendered in behalf of the incompetent at the request of one of the incompentent's guardians, would be affirmed upon evidence that attorney's services were required due to guardian's neglect of guardian's duties; any additional compensation should be sought from guardian, not from ward's estate. In re Boyd's Guardianship, 1933-NMSC-003, 37 N.M. 83, 18 P.2d 658.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Power of guardian as to compromise of liquidated contract claim or money judgment, 155 A.L.R. 196.
Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without approval of court, 63 A.L.R.3d 780.
14 C.J.S. Chemical Dependents § 4; 39 C.J.S. Guardian and Ward § 108; 49 C.J.S. Insane Persons § 88.
