The Key to Removing a Personal Representative in New Mexico

Often when there is a will contest there is a fight over who will be the personal representative (PR). Under certain conditions, you may be able to ask the court to remove the current PR and appoint a new one. The key to removing a personal representative in New Mexico is to make sure that one of the statutory grounds exists to allow removal.

Who can ask the court to remove a personal representative?

Under the New Mexico Uniform Probate Code, only an “interested person” can ask the court to remove a PR. An interested person is defined broadly, including people such as heirs, devisees, beneficiaries, creditors, or persons having priority to serve as PR. To start a removal proceeding, the interested person must file a petition showing the grounds on which the removal is sought. The court will then hold a hearing to decide whether to remove the PR.

What are the grounds for removing a personal representative?

New Mexico’s probate code defines the reasons that a PR can be removed. Cause for removal exists when:

• removal would be in the best interests of the estate;
• it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment;
• the personal representative has disregarded an order of the district court;
• the personal representative has become incapable of discharging the duties of his office;
• the personal representative has mismanaged the estate; or
• the personal representative failed to perform any duty pertaining to the office.

None of these should be surprising. In general, the PR can be removed if they are not carrying out their duties or if their actions are hurting the estate.

What happens once a petition to remove a personal representative is filed?

Except as otherwise ordered as provided in Section 3-607 [45-3-607 NMSA 1978], after receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration or preserve the estate. If removal is ordered, the district court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.

Do you need help removing a personal representative in Albuquerque or New Mexico? Our probate attorneys can help. For a free consultation with one of our attorneys to see whether we can help, please contact us at (505) 370-1500.