2021 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 1 - Uniform Probate Code
Part 4 - NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS
Section 45-1-401 - Notice; method and time of giving.

A. If notice of a hearing on any petition is required and except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or, if the interested person is represented by an attorney, to the attorney. Notice shall be given:

(1) by mailing a copy thereof at least fourteen days before the time set for the hearing by certified, registered or ordinary first class mail addressed to the person being notified at the post office address given in the demand for notice, if any, or at the person's office or place of residence, if known;

(2) by service of a copy thereof upon the person being notified in the manner provided by the rules of civil procedure for service of summons and complaint in civil actions; or

(3) if the address or identity of any person is not known and cannot be ascertained with reasonable diligence, by publishing a copy thereof once a week for three consecutive weeks in a newspaper of general circulation in the county in which the hearing is to be held, the last publication of which is to be at least ten days before the time set for the hearing.

B. The court for good cause shown may provide for a different method or time of giving notice for a hearing.

C. Proof of the giving of notice shall be made on or before the hearing and filed in the proceeding.

History: 1953 Comp., § 32A-1-401, enacted by Laws 1975, ch. 257, § 1-401; 2016, ch. 69, § 702.

Cross references. — For service of summons, see 1-004 NMRA.

For summons, see 4-206 NMRA.

The 2016 amendment, effective July 1, 2016, allowed for a notice of a hearing on any petition to be given to an interested person's attorney; in Subsection A, in the introductory sentence, after "given to any", added "interested", after the first occurrence of "person", deleted "having an interest in the subject of the hearing" and added "or, if the interested person is represented by an attorney, to the attorney", in Paragraph (1), after "address given in", deleted "his" and added "the", after "if any, or at", deleted "his" and added "the person's", and after the semicolon, deleted "or", in Paragraph (3), after "a copy thereof", deleted "at least", after "once a week for", deleted "two" and added "three", after "newspaper", deleted "published and having" and added "of", and after "hearing is to be held", deleted "or, if there be no newspaper published in such county, then in a newspaper of general circulation in such county"; and in Subsection B, after "giving notice for", deleted "any hearings" and added "a hearing".

Effect of Subsection B. — The notice requirement in 45-5-309B NMSA 1978 is subject to Subsection B and where an incapacitated person cannot see or read, service on his attorney would suffice, particularly when the attorney requested the hearing, insured the party's attendance and participation, and vigorously contested the petition. In re Conservatorship & Guardianship of Pulver, 1994-NMCA-024, 117 N.M. 329, 871 P.2d 985.

The Unclaimed Property Act's administrative process is exclusive and mandatory, and therefore the district court is without jurisdiction to decide claims for unclaimed property. — Where petitioner was appointed the personal representative of his deceased grandfather's estate, and where the probate court, at petitioner's request, issued an order directing the New Mexico taxation and revenue department (department) to release $70,000 of unclaimed property that belonged to decedent, and where the probate court transferred the case to the district court when the department refused to release the property, the district court's order directing the department to comply with the probate court and release the unclaimed property to petitioner was invalid, because the administrative claim filing provisions of the Unclaimed Property Act, 7-8A-1 to 7-8A-31 NMSA 1978, are exclusive and mandatory, and therefore the district court did not have jurisdiction to determine that the property was estate property or to enforce the probate court's order as the probate court had no authority to order the department to release the unclaimed property to petitioner. In re Estate of McElveny, 2017-NMSC-024, rev'g 2015-NMCA-080, 355 P.3d 75.

Notice requirement need not satisfy requirements of Rule 1-004 NMRA. — Probate proceedings are in rem special proceedings. A district court is not required to obtain personal jurisdiction over a custodian of property by service of process pursuant to Rule 1-004 NMRA. All that is required is that a district court have in rem jurisdiction over a decedent's estate property, and the notice requirement pursuant to this section only entitles a custodian of property with an interest in the subject of the hearing to notice of the hearing and an opportunity to be heard. In re Estate of McElveny, 2015-NMCA-080, cert. granted, 2015-NMCERT-007.

Where personal representative of decedent's estate opened an informal probate for his deceased grandfather pursuant to the Uniform Probate Code, and the probate court properly issued an order directing the personal representative to collect the estate's assets so they could be administered through probate, the personal representative was not required to serve process upon the taxation and revenue department (department), as the custodian of decedent's property, pursuant to Rule 1-004 NMRA, because the estate was not suing the department, nor was it attempting to obtain personal jurisdiction over the department for the purpose of stating a claim against the department. The notice requirement pursuant to this section was satisfied when the department was provided with notice of the probate proceeding and a full and fair opportunity to be heard in the district court. In re Estate of McElveny, 2015-NMCA-080, cert. granted, 2015-NMCERT-007.

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. — 1 Am. Jur. 2d Absentees § 1 et seq.; 61A Am. Jur. 2d Pleading § 351.

71 C.J.S. Pleading §§ 4, 98.