2019 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 3 - Probate of Wills and Administration
Part 7 - DUTIES AND POWERS OF PERSONAL REPRESENTATIVES
Section 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 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.

F. The personal representative must not delay distribution of an estate pending the possible birth of a posthumously conceived child unless the personal representative:

(1) has received written notice or has actual knowledge that there is an intention to use a decedent's genetic material to create a child; and

(2) the birth of the child pursuant to the provisions of Section 45-2-120 NMSA 1978 or other law could have an effect on the personal representative's distribution of the estate. As used in this subsection, "genetic material" means eggs, sperm or embryos.

History: 1953 Comp., § 32A-3-703, enacted by Laws 1975, ch. 257, § 3-703; 2011, ch. 124, § 46; 2017, ch. 41, § 17.

The 2017 amendment, effective January 1, 2018, added Subsection F.

The 2011 amendment, effective January 1, 2012, provided that a personal representative is a fiduciary who must observe the standards of care of trustees.

Conflicts of interest. — Where decedent had initiated divorce proceedings against decedent's spouse and died prior to any rulings in that case, the trial court erred in appointing decedent's spouse as personal representative of decedent's estate pursuant to 45-3-703E NMSA 1978, since the pending divorce proceedings must continue in accordance with 40-4-20B NMSA 1978, and it was clear there was an inherent conflict of interest in having the spouse serve as personal representative of decedent's estate. Oldham v. Oldham, 2009-NMCA-126, 147 N.M. 329, 222 P.3d 701, aff'd in part, rev'd in part, 2011-NMSC-007, 149 N.M. 215, 247 P.3d 736.

Division of marital estate. — Parents of decedent, as personal representatives of decedent's estate, succeeded to decedent's interest in division of marital property and had the same standing to be sued as did decedent during decedent's life, so that the district court had jurisdiction to divide the marital estate between decedent's spouse and the personal representatives of decedent's estate. Karpien v. Karpien, 2009-NMCA-043, 146 N.M. 188, 207 P.3d 1165.

Standing to sue. — Once plaintiff's surviving spouse was appointed as decedent's estate's personal representative, plaintiff could be substituted as the real party in interest because, under the Uniform Probate Code, the personal representative is authorized to prosecute claims for the protection of the estate (45-3-715A(22) NMSA 1978) and has the same standing to sue as the decedent had immediately prior to death (45-3-703E NMSA 1978). Martinez v. Segovia, 2003-NMCA-023, 133 N.M. 240, 62 P.3d 331.

Breach of duty. — A personal representative who failed to distribute the estate in accordance with either the will or New Mexico law breached the personal representative's duty, since, although the decedent intended decedent's grandchildren to have a particular property if their father predeceased decedent, and the personal representative knew this fact, the personal representative misrepresented the terms of the will to the grandchildren and their mother, the personal representative promised to send them a copy of the will but failed to do so, thus preventing them from learning of their interest under the will, and the personal representative filed pleadings in probate and distributed the estate in a manner that, if the probate had not been contested, it would have appeared that petitioners had notice and had received their "intestate" share of the estate assets listed on the inventory, which omitted the property the decedent had intended decedent's grandchildren to have. In re Estate of Gardner, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of administrator with will annexed to execute power of sale conferred by will, 9 A.L.R.2d 1324.

Power of sale conferred on executor by testator as authorizing private sale, 11 A.L.R.2d 955.

Implied power of executor to sell real estate, 23 A.L.R.2d 1000.

Time within which personal representative must commence action for refund of legacy or distribution, 29 A.L.R.2d 1248.

Necessity that person acting in fiduciary or representative capacity give bond to maintain appellate review proceedings, 41 A.L.R.2d 1324.

Power and responsibility of executor or administrator to compromise claim against estate, 72 A.L.R.2d 243.

Election by spouse to take under or against will as exercisable by agent or personal representative, 83 A.L.R.2d 1077.

Power of executor with power to sell or to lease real property, or to do both, to give an option to purchase, 83 A.L.R.2d 1310.

Duty and liability of executor with respect to locating and noticing legatees, devisees or heirs, 10 A.L.R.3d 547.

Right of executor or administrator to appeal from order granting or denying distribution, 16 A.L.R.3d 1274.

33 C.J.S. Executors and Administrators § 142; 34 C.J.S. Executors and Administrators §§ 688, 707.