2019 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 1 - Uniform Probate Code
Part 2 - DEFINITIONS
Section 45-1-201 - Definitions.

A. As used in the Uniform Probate Code, except as provided in Subsection B of this section and unless the context otherwise requires:

(1) "agent" includes an attorney-in-fact under a durable or nondurable power of attorney, an individual authorized to make decisions concerning another's health care and an individual authorized to make decisions for another under a natural death act;

(2) "application" means a written request to a court for an order of informal probate or appointment pursuant to Chapter 45, Article 3 NMSA 1978;

(3) "authenticated", with reference to copies, means certified or exemplified;

(4) "beneficiary", as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer; as it relates to a charitable trust, includes any person entitled to enforce the trust; as it relates to a "beneficiary of a beneficiary designation", refers to a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD) or of a pension, profit-sharing, retirement or similar benefit plan or other nonprobate transfer at death; and, as it relates to a "beneficiary designated in a governing instrument", includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee or taker in default of a power of appointment or a person in whose favor a power of attorney or a power held in any individual, fiduciary or representative capacity is exercised;

(5) "beneficiary designation" refers to a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD) or of a pension, profit-sharing, retirement or similar benefit plan or other nonprobate transfer at death;

(6) "child" includes an individual entitled to take as a child pursuant to the Uniform Probate Code by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild or any more remote descendant;

(7) "claims", in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person, whether arising in contract, in tort or otherwise and liabilities of the estate that arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. "Claims" does not include estate or inheritance taxes or demands or disputes regarding title of a decedent, an incapacitated person or a minor protected person to specific assets alleged to be included in the estate;

(8) "conservator" has the same meaning as set forth in Section 45-5-101 NMSA 1978;

(9) "descendant" of an individual means all of the individual's descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in the Uniform Probate Code;

(10) "devise", when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will;

(11) "devisee" means a person designated in a will to receive a devise. For the purposes of Chapter 45, Article 3 NMSA 1978, in the case of a devise to an existing trust or trustee or to a trustee or trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees;

(12) "distributee" means a person who has received property of a decedent from the decedent's personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in the testamentary trustee's hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purposes of this paragraph, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets;

(13) "electronic" means relating to technology having electronic, digital, magnetic, wireless, optical, electromagnetic or similar capabilities;

(14) "emancipated minor" means a person sixteen years of age or older who:

(a) has entered into a valid marriage, whether or not the marriage was terminated by dissolution;

(b) 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

(c) has received a declaration of emancipation pursuant to the Emancipation of Minors Act [32A-21-1 to 32A-21-7 NMSA 1978];

(15) "estate" includes the property of the decedent, trust or other person whose affairs are subject to the Uniform Probate Code as the property was originally constituted and as it exists from time to time during administration;

(16) "exempt property" means that property of a decedent's estate that is described in Sections 45-2-402 and 45-2-403 NMSA 1978;

(17) "fiduciary" includes a personal representative, guardian, guardian ad litem, conservator and trustee;

(18) "foreign personal representative" means a personal representative appointed by another jurisdiction;

(19) "formal proceedings" means proceedings conducted before a district judge with notice to interested persons;

(20) "governing instrument" means a deed, will, 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, instrument creating or exercising a power of appointment or a power of attorney or a dispositive, appointive or nominative instrument of a similar type;

(21) "guardian" means a person who has qualified to provide for the care, custody or control of the person of a minor or incapacitated person pursuant to parental or court appointment. "Guardian" includes a limited, emergency and temporary guardian but not a guardian ad litem;

(22) "guardian ad litem" means a person appointed by the district court to represent and protect the interests of a minor or an incapacitated person in connection with litigation or any other court proceeding;

(23) "heirs", except as controlled by Section 45-2-711 NMSA 1978, means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent;

(24) "incapacitated person" means an individual described in Section 45-5-101 NMSA 1978;

(25) "informal proceedings" means those proceedings conducted without notice to interested persons before the court for probate of a will or appointment of a personal representative, except as provided for in Section 45-3-306 NMSA 1978;

(26) "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. "Interested person" also includes persons having priority for appointment as personal representatives and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, a proceeding;

(27) "issue" of an individual means the individual's descendants;

(28) "lease" includes an oil, gas or other mineral lease;

(29) "letters" includes letters testamentary, letters of guardianship, letters of administration and letters of conservatorship;

(30) "minor" means an unemancipated individual who has not reached eighteen years of age;

(31) "mortgage" means any conveyance, agreement or arrangement in which property is encumbered or used as security;

(32) "nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of death;

(33) "organization" means a corporation, business trust, limited liability company, estate, trust, partnership, joint venture, association, government or governmental subdivision or agency or any other legal or commercial entity;

(34) "parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent pursuant to the Uniform Probate Code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent or grandparent;

(35) "payor" means a trustee, insurer, business entity, employer, government, governmental agency or subdivision or any other person authorized or obligated by law or a governing instrument to make payments;

(36) "person" means an individual or an organization;

(37) "personal representative" includes executor, administrator, successor personal representative, special administrator and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator;

(38) "petition" means a written motion or other request to the district court for an order after notice;

(39) "proceeding" includes action at law and suit in equity;

(40) "property" includes both real and personal property or any right or interest therein and means anything that may be the subject of ownership;

(41) "protected person" has the same meaning as set forth in Section 45-5-101 NMSA 1978;

(42) "protective proceeding" means a conservatorship proceeding pursuant to Section 45-5-401 NMSA 1978;

(43) "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;

(44) "security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for or any warrant or right to subscribe to or purchase any of the foregoing;

(45) "settlement", in reference to a decedent's estate, includes the full process of administration, distribution and closing;

(46) "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;

(47) "special administrator" means a personal representative as described by Sections 45-3-614 through 45-3-618 NMSA 1978;

(48) "state" means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico or any territory or insular possession subject to the jurisdiction of the United States. "State" also includes any Indian nation, tribe, pueblo or band located within the United States and recognized by federal law or formally acknowledged by a state of the United States;

(49) "successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative;

(50) "successors" means persons, other than creditors, who are entitled to property of a decedent under the decedent's will or the Uniform Probate Code;

(51) "supervised administration" refers to the proceedings described in Article 3, Part 5 of the Uniform Probate Code;

(52) "survive" means that an individual has neither predeceased an event, including the death of another individual, nor is deemed to have predeceased an event pursuant to Section 45-2-104 or 45-2-702 NMSA 1978. "Survive" includes its derivatives, such as "survives", "survived", "survivor" and "surviving";

(53) "testacy proceeding" means a proceeding to establish a will or determine intestacy;

(54) "testator" includes an individual of either gender;

(55) "trust" includes an express trust, private or charitable, with additions thereto, wherever and however created. "Trust" also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. "Trust" excludes other constructive trusts and excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in Article 6 of the Uniform Probate Code, custodial arrangements, including those created under the Uniform Transfers to Minors Act [46-7-11 to 46-7-34 NMSA 1978], business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions or employee benefits of any kind and any arrangement under which a person is nominee or escrowee for another;

(56) "trustee" includes an original, additional or successor trustee, whether or not appointed or confirmed by court; and

(57) "will" includes a codicil and any testamentary instrument that merely appoints a personal representative, revokes or revises another will, nominates a guardian or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession. "Will" does not include a holographic will.

B. The definitions in Subsection A of this section are made subject to additional definitions contained in subsequent articles that are applicable to specific articles, parts or sections.

History: 1953 Comp., § 32A-1-201, enacted by Laws 1975, ch. 257, § 1-201; 1983, ch. 194, § 1; 1989, ch. 252, 2; repealed and reenacted by Laws 1993, ch. 174, § 4; 1995, ch. 210, § 2; 2009, ch. 159, § 20; 2011, ch. 124, § 5.

Repeals and reenactments. — Laws 1993, ch. 174, § 4 repealed former 45-1-201 NMSA 1978, as enacted by Laws 1975, ch. 257, § 1-201, and enacted a new section, effective July 1, 1993.

Cross references. — For definitions of "POD" and "TOD", see 45-6-305 NMSA 1978.

For other definitions, see 45-2A-2, 45-4-101, 45-6-201, 45-6-301 and 45-7-502 NMSA 1978

The 2011 amendment, effective January 1, 2012, added definitions for "authenticated", "conservator", "electronic", "emancipated minor", "record" and "sign"; included the transfer on death deed to the definition of "governing instrument"; added a limited, emergency and temporary guardian to the definition of "guardian"; required that a minor be an unemancipated individual; added limited liability companies to the definition of "organization"; and included Indian governmental entities to the definition of "state".

The 2009 amendment, effective June 19, 2009, changed "ward" to "protected person"; and deleted Paragraph (52) of Subsection A, which defined "ward".

The 1995 amendment, effective July 1, 1995, deleted "except for the purpose of Chapter 45, Article 6, Part 3 NMSA 1978" following "'survive'" in Subsection A(47).

A wrongful death claim falls within the literal definition of "claim" under the Uniform Probate Code, 45-1-201 NMSA 1978 et seq. Garcia v. Underwriters at Lloyd's London, 2007-NMCA-042, 141 N.M. 421, 156 P.3d 712, aff'd, 2008-NMSC-018, 143 N.M. 732, 182 P.3d 113.

"Devise" and "devisees." — Nothing in the definitions of "devise" or "devisee" suggests that the beneficiaries of a trust are also "devisees" of the trust assets, rather in the case of a devise to an existing trust or trustee or to a trustee or trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees; and these definitions set forth in 45-1-201 NMSA 1978 are for use throughout the Uniform Probate Code, which includes 45-2-301 NMSA 1978. Bell v. Estate of Bell, 2008-NMCA-045, 143 N.M. 716, 181 P.3d 708, cert. quashed 145 N.M. 532.

Meaning of "heirs of the body". — The term "heirs of the body" means issue of the body, offspring, progeny, natural children, physically born and begotten by the person named as parent. The expression "heirs of the body" is a restrictive term, as compared with the term "heirs" generally, or with the term "child or children," and when used in such instruments it must be construed to mean and include only children actually begotten and born of the parents in question. Delaney v. First Nat'l Bank, 1963-NMSC-160, 73 N.M. 192, 386 P.2d 711 (decided under former law).

"Issue." — An adopted child who was not entitled to share in the testator's estate, but who would have been entitled to share in the estate if the testator had died intestate, was the "issue" of the testator under the Uniform Probate Code. In re Estate of Coleman, 1986-NMCA-030, 104 N.M. 192, 718 P.2d 702.

Status of adopted children in construction of wills. — Wills must be construed in harmony with the public policy of placing an adopted child on a level with natural children. Delaney v. First Nat'l Bank, 1963-NMSC-160, 73 N.M. 192, 386 P.2d 711 (decided under former law).

"Children" does not include grandchildren. — The term "children," as used in a testamentary disposition, does not include the term "grandchildren" unless an intention to give it the extended meaning appears clearly in the will or by necessary implication. Portales Nat'l Bank v. Bellin, 1982-NMCA-092, 98 N.M. 113, 645 P.2d 986.

Predeceased child is not an "heir" within the meaning of the New Mexico Uniform Probate Code. In re Estate of Hilton, 1982-NMCA-104, 98 N.M. 420, 649 P.2d 488.

Guardian in name, conservator in fact. — Although defendant technically was named "guardian" of her mother's estate after the latter's adjudicated incompetence, defendant's selling of property, filing of tax returns, collecting of royalties and actual income, and entering into mineral and grazing leases, established her as conservator of the estate within the meaning of 45-1-201 NMSA 1978, and it followed that this section applied to entitle petitioners to the net price of the contested property. In re Estate of Gardner, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.

"Interested person" is owner of right under Rule 1-017 NMRA. — If one has a property right in the estate of a decedent, he is an "interested person" under Subsection A(19) of this section, and if he qualifies as such, he also would constitute an owner of a right being enforced under the first prong of Rule 1-017 NMRA. Rienhardt v. Kelly, 1996-NMCA-050, 121 N.M. 694, 917 P.2d 963.

Revocation of will. — A written instrument stating that it was the maker's intent to revoke his prior will was not a will because it was not testamentary in nature as required by 45-1-201 NMSA 1978 since a testamentary instrument is one that operates only upon and by reason of the death of the maker. Sanchez v. Martinez, 1999-NMCA-093, 127 N.M. 650, 985 P.2d 1230.

Will generally. — A will is an ambulatory document which takes effect and passes the property of a person at his death (45-1-201 NMSA 1978). In re Estate of Martinez, 1983-NMCA-050, 99 N.M. 809, 664 P.2d 1007.

Law reviews. — For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).

For survey, "Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration," see 6 N.M.L. Rev. 213 (1976).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Guardian and Ward § 11; 79 Am. Jur. 2d Wills §§ 23, 27, 28, 38, 39, 125, 178 to 182, 191, 841, 842; 80 Am. Jur. 2d Wills §§ 882, 900, 1098 to 1121, 1164, 1192, 1195, 1216 to 1221, 1515, 1536, 1667, 1755.

Electronic tape recording as will, 42 A.L.R.4th 176.

What passes under term "personal property" in will, 31 A.L.R.5th 499.

Adopted child as within class named in deed or inter vivos trust instrument, 37 A.L.R.5th 237.

94 C.J.S. Wills §§ 20, 117, 134, 148; 95 C.J.S. Wills §§ 315, 317, 322, 323, 359, 371, 423, 425, 434, 516, 550, 578, 613, 643 to 691; 96 C.J.S. Wills §§ 692 to 718, 748, 788, 1004 to 1061, 1082, 1088, 1129.