Brother, not married passed away in NM

[dpyle]

What is the name of your state? New Mexico, my brother was killed in an auto accident. He never married but he had a daughter with this woman. His daughter is 11 years old. There may have been a paper filed to the effect that she is his daughter, not sure. What needs to be done to take care of his assets? can we use his assets to pay for funeral expenses? The mom to his daughter has started selling some of his things and is wanting everything. What can be done? What rights do my mother and I have?

 

[rmet4nzkx]

What is the name of your state? New Mexico, my brother was killed in an auto accident. He never married but he had a daughter with this woman. His daughter is 11 years old. There may have been a paper filed to the effect that she is his daughter, not sure. What needs to be done to take care of his assets? can we use his assets to pay for funeral expenses? The mom to his daughter has started selling some of his things and is wanting everything. What can be done? What rights do my mother and I have?

Here is a link to probate law in NM which should help answer your quesitons.
http://jec.unm.edu/resources/benchbooks/probate/08-1.htm
6. List of Spouse, Children, Heirs and Devisees

The Application must list decedent’s spouse, children, heirs and devisees, together with their complete address, city, state, and zip. Ages of minor children should be listed but no other ages are required. If the personal representative is a spouse, child, heir or devisee of the decedent, then the personal representative should also list himself/herself.

Who are the Heirs?
Section 45-2-103 lists which heirs have priority to inherit an intestate estate. This statute also gives guidance about which heirs must be listed in the initial Application:

* If decedent is married, decendent’s spouse is an heir.
* Decedent’s children, by representation;
* include all of decedent’s biological children, if any;
* include children adopted by decedent, if any.
* If one or more of decedent’s children have died, all children of the deceased child or children are also considered heirs of the decedent's estate.
* If the decedent had no souse or children, decedent’s parents are the heirs, if both survive, or the surviving parent;
* If the decedent also has no surviving spouse, children, or parents, then decedent’s brothers and sisters are the heirs; (if one or more of decedent’s siblings has died, the children of the deceased sibling(s) are also heirs of the estate);
* If the decedent has no children, parents or siblings, the decedent's grandparents are the heirs--if the grandparents are deceased, their children (decedent's aunts and uncles), are the heirs of the estate.

If no relatives of the decedent can be found, the estate “escheats” to the state school fund (Section 45-2-105).

The names and complete addresses of the surviving spouse, children, heirs and devisees must be listed in the Application, along with the ages of any minor children. The heirs are determined according to the above criteria.

For example, if the decedent had no spouse, but had children, the Applicant should list the children (and children of any deceased children) and then stops. If the decedent had no spouse or children, then Applicant should list the parents, if any. If no parents, then the Applicant should list the next level of heirs, and so on. All devisees (people or entities named as beneficiaries in a Will) must also be listed, but not alternate devisees.

If the Applicant does not know who or where some of the heirs are, he has a duty to perform a reasonably diligent search for them. In New Mexico, any heir who fails to survive a decedent by 120 hours (5 days) is deemed to have died before the decedent.

 

[Dandy Don]

Check at the county courthouse probate court to see if this lady or her attorney has filed to become administrator of the estate. If she hasn't, then you or your probate attorney can file to be administrator.

This lady probably has no legal standing since she wasn't married to him, so you need to challenge her control and get legal authority to claim all assets, which the administrator will get. If she has the will, court can order her to produce it.

DANDY DON IN OKLAHOMA ([email protected])

 

[mumlexie]

Being as I am an example of "this woman" I can tell you that "this woman" does have a right to protect assets that belong to her child. I am the mother of a child whose father also was recently killed in an auto accident. We were not married. Do you know who controls my child's assets from her father's estate? I do. But if I had allowed it I could have let someone else control it for her. Most mothers would be more protective in this case than just trying to keep others out. If they lived together it is likely that she feels these things of his are hers to deal with. It is more of a personal issue than an asset issue. I know I was there. His family took all of his belongings and it was very painful to me. But on a different note. She can not be administrator to his estate and guardian of the estate of her child. If you are in contact with this person at all and she is at least somewhat descent try to be gentle in what you do, burning bridges over assets and/or money now may lead to this child having little or no contact with your brother's side of the family. If the father signed the birth certificate (which is easy to obtain by you) then that is all they need to prove her his heir. If the accident leads to a wrongful death settlement you and your mother may share in the proceeds with the child but it is generally not of equal proportions as the heir is still a minor.

Good luck and keep an open mind for what you would do in her shoes. Most importantly if you want to be involved get a probate attorney and do not sign any waivers giving up your right to anything especially hearings. As her daughter is an only heir you will probably have to directly request to the court to be included. The only person "this woman" would have to have waive their right to be administrator of his estate would be her daughter. Better not wait if you want to know what is going on.

 

[mumlexie]

yes. If he has assets that would cover the cost of funeral expenses the court will generally allow them to be paid before any beneficiaries recieve their funds, it can also be taken from a wrongful death settlement. But this won't happen unless you get involved and petition the court to recieve these funds.

 

[rmet4nzkx]

to mumlexie,
In my post which was #2 I cited NM probate law from the judges manual and it definately had biological child as #1 before all other comers and if paternity was established the mother may be within her rights, sometimes paternity has to be established after death if it wasn't prior to death. Certanily funeral costs within reason can be paid, again there could be some disagreement of this subject.