When a person dies owning property in more than one state, probate may be required in each state where assets are located. This can increase the complexity and cost of estate administration. For those serving as executor or personal representative, understanding how ancillary probate works in New Mexico is essential to properly transfer title to local assets, including mineral interests and real estate.
What is Ancillary Probate?
Ancillary probate is a legal proceeding used to administer a decedent’s assets located in a state other than the decedent’s home state. If real property or mineral rights are located in New Mexico, a separate probate process must be initiated in New Mexico, regardless of where the original probate was filed.
New Mexico’s Ancillary Probate Options
In New Mexico, ancillary probate proceedings may take one of two forms:
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Formal Ancillary Appointment
A probate or district court in New Mexico appoints a personal representative to administer the local estate. This process mirrors a typical probate proceeding under New Mexico law. NMSA 45-4-207.
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Recognition of Out-of-State Appointment
The alternative form requires the out of state personal representative to file in the probate or district court proof of his or her appointment and an affidavit containing (1) the date of death of the nonresident, (2) the fact that no local administration is pending, and (3) a copy of any bond that was given with their name and address. NMSA 45-4-201. Although not strictly required, it is highly recommended to also file an authenticated copy of the will. This is important because the will may contain provisions that limit the representative’s authority.
Once the filings are complete, the personal representative will administer the New Mexico properties and issue deeds of distribution to the beneficiaries of the New Mexico assets.
Why Ancillary Probate is Required: The Allen v. Amoco Case
Complying with New Mexico’s ancillary probate requirements is essential to lawfully transfer a decedent’s property located within the state. An out-of-state appointment as executor or personal representative does not, on its own, confer authority over New Mexico assets. The New Mexico Court of Appeals underscored this principle in Allen v. Amoco Production Co., where the court held that failure to initiate ancillary proceedings rendered a purported transfer of mineral interests invalid.
In this case, the decedent owned an interest in mineral rights in San Juan County, New Mexico. In 1972, he conveyed the surface parcel to a third party but retained an interest in the mineral rights. The decedent then passed away in Colorado, naming his son Osborn as executor and devising his estate among his relatives. The will gave the executor the power to settle the estate by disposing of real property. After being appointed in Colorado, Osborn borrowed money and purchased for himself the decedent’s retained mineral interest plus interest in the contract with the third party, on which it was still paying. Shortly after executing the deed, Osborn passed away, and the Colorado court appointed a personal representative to administer the decedent father’s estate. The personal representative did not initiate ancillary probate proceedings in New Mexico or comply with any of New Mexico’s statutory requirements.
The court considered whether the personal representative’s power to sell granted by the decedent’s will legitimized the mineral rights sale in New Mexico despite the lack of ancillary probate proceedings. The defendant heirs argued that the Colorado personal representative’s power to sell did not extend to New Mexico unless ancillary probate proceedings were commenced in New Mexico.
The court agreed, stating that the executor’s power is derivative of the effect a trial court gives a will by probating it. The court reasoned that the ancillary probate system functions to provide a way to assure that a will is valid and that an executor proceeds according to law. Ultimately, the court held that the executor did not have power to sell the real estate in New Mexico because he did not initiate ancillary proceedings.
Key Takeaways for Executors
If you are serving as a personal representative or executor in another state and the decedent owned property in New Mexico, you must comply with New Mexico’s ancillary probate process. Without doing so, you have no legal authority to manage or transfer property located in the state.
This applies particularly to mineral interests, which are classified as real property under New Mexico law. Attempting to convey or lease mineral rights without completing ancillary probate may result in invalid transactions and title defects.
Ancillary probate is an essential step for transferring title to New Mexico property when the decedent was domiciled elsewhere. It protects the interests of creditors, taxing authorities, and heirs, while providing the legal framework for out-of-state representatives to act within New Mexico.
Kuiper Law Firm, PLLC specializes in oil and gas law; if you have any questions about the information in this article, do not hesitate to contact us.