2020 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 3 - Probate of Wills and Administration
Part 8 - CREDITORS' CLAIMS
Section 45-3-808 - Individual liability of personal representative.

A. Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity.

B. A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.

C. Claims based on contracts entered into by a personal representative in his fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.

D. Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge or indemnification or other appropriate proceeding.

History: 1953 Comp., § 32A-3-808, enacted by Laws 1975, ch. 257, § 3-808.

Official comments. — See Commissioners on Uniform State Law official comment to 3-808 UPC.

Cross references. — For liability for failure to pay or secure payment of estate taxes before distribution or delivery, see 7-7-12 NMSA 1978.

Proceeding for accounting not required. — Subsection D does not require that a proceeding for an accounting is required for the personal representative to be held personally liable. On the contrary, the statute states that a personal representative will be individually liable for torts committed in the administration of the estate if the personal representative is personally at fault. In re Estate of Gardner, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.

Jurisdiction lacking for finding of liability. — The district court lacked jurisdiction to enter an order awarding damages against the personal representative, individually, where no claim was originally pleaded or asserted against him individually and where the assets, consisting of realty, against which the majority of the claims were asserted were not part of decedent's estate. In re Estate of Salas, 1987-NMCA-018, 105 N.M. 472, 734 P.2d 250.

Law reviews. — 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. — Contract of trustee as basis of suit to reach the trust estate or to charge the trustee personally or as trustee, 139 A.L.R. 134.

Allowance out of decedent's estate for services rendered by attorney not employed by executor or administrator, 142 A.L.R. 1459.

Treatment of personal claim of executor or administrator antedating the death of decedent, 144 A.L.R. 940.

Liability of personal representative with respect to completion of improvements, 5 A.L.R.2d 1250.

Personal liability of executor or administrator for interest on legacies or distributive shares where payment is delayed, 18 A.L.R.2d 1384.

Accountability of personal representative for his use of decedent's real estate, 31 A.L.R.2d 243.

Construction and effect of 31 U.S.C. § 192 imposing personal liability on fiduciary for paying debts due by person or estate for whom he acts before paying debts due United States, 41 A.L.R.2d 446.

Replevin or similar possessory action, availability to one not claiming as heir, legatee or creditor of decedent's estate, against personal representative, 42 A.L.R.2d 418.

Liability of personal representative for losses incurred in carrying on, without testamentary authorization, decedent's nonpartnership mercantile or manufacturing business, 58 A.L.R.2d 365.

Coexecutor's or coadministrator's liability for defaults or wrongful acts of fiduciary in handling estate, 65 A.L.R.2d 1019.

Place of personal representative's appointment as venue of action against him in his official capacity, 93 A.L.R.2d 1199.

Liability of executor or administrator for negligence or default in defending action against estate, 14 A.L.R.3d 1036.

Liability of executor or administrator, or his bond, for loss caused to estate by act or default of his agent or attorney, 28 A.L.R.3d 1191.

Liability of executor, administrator, trustee or his counsel for interest, penalty or extra taxes assessed against estate because of tax law violations, 47 A.L.R.3d 507.

Liability of executor or administrator to estate because of overpaying or unnecessarily paying tax, 55 A.L.R.3d 785.

Garnishment against executor or administrator by creditor of estate, 60 A.L.R.3d 1301.

17A C.J.S. Contracts § 347; 33 C.J.S. Executors and Administrators § 142; 34 C.J.S. Executors and Administrators § 367.