fathers retirment etc. from n.m.

[guy in nm]

my father recently pssed away,he had no will and just a month or two before his death he had divorced my mohther and retired. he was in the middle of cashing out his retirement but was wating to recive letter from my mother saying she was removing hereself from any rights to his retirment,etc leaving it all to my brother and I. while watting he passed away. will my brother and I recive the checks or will we end up in probate court.Also is it wise to hire a probate lawer or will it end up costing more in the end.any help would be apriciated. I dont really know what im doing I've never had to do any of this untill now. thanks
guy in new mexico

[seniorjudge]

my father recently pssed away,he had no will and just a month or two before his death he had divorced my mohther and retired. he was in the middle of cashing out his retirement but was wating to recive letter from my mother saying she was removing hereself from any rights to his retirment,etc leaving it all to my brother and I. while watting he passed away. will my brother and I recive the checks or will we end up in probate court.Also is it wise to hire a probate lawer or will it end up costing more in the end.any help would be apriciated. I dont really know what im doing I've never had to do any of this untill now. thanks
guy in new mexico

Get a lawyer and file a probate case.

New Mexico Intestate Succession Laws

If any part of a New Mexico decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate, including both separate property and the one-half of community property that belongs to the decedent. However, the amount a surviving spouse is entitled to varies as follows:

* If there is no surviving issue of the decedent (e.g., child or grandchild), the surviving spouse is entitled to the entire intestate estate.
* If there is surviving issue of decedent, the surviving spouse is entitled to one-fourth of the intestate estate, plus one-half of the community property that the decedent could have disposed of by will (but didn't).

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes as follows to:

1. Decedent's descendants by representation. In such case, the estate or part thereof is divided into as many equal shares as there are surviving descendants in the generation nearest to the decedent that contains one or more surviving descendants and deceased descendants in the same generation who left surviving descendants (if any). Each surviving descendant in the nearest generation is allocated one share. Any remaining shares are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
2. Decedent's parent or parents equally.
3. Descendants of the decedent's parents or either of them by representation. In such case, the estate or part thereof is divided into as many equal shares as there are surviving descendants in the generation nearest the deceased parents or either of them or the deceased grandparents or either of them that contains one or more surviving descendants and deceased descendants in the same generation who left surviving descendants (if any). Each surviving descendant in the nearest generation is allocated one share. Any remaining shares are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
4. If none of the above relatives are available, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or by representation to the descendants of the decedent's paternal grandparents or either of them if both are deceased. The other half passes to the decedent's maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, however, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

3. State of New Mexico. If there is no taker under any of the above provisions, the intestate estate passes by default ("escheats") to the state of New Mexico.

New Mexico Intestate Succession Law Fun Facts

* Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
* Relatives of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent (provided the new-born lives at least 120 hours after birth).
* Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession (which means that the person generally doesn't get a share of the decedent's estate). If it cannot be established by clear and convincing evidence that the person who would otherwise be an heir has survived the decedent by 120 hours, it is considered that the person failed to survive for the required period. However, these rules don't apply if the end result is that the state of New Mexico gets the intestate estate.
* New Mexico's intestate succession laws, as well as other related laws, can be found in Chapter 45 of the New Mexico Statutes.

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