My sister passed on 9/17, in Albuquerque, NM. Since her husband predeceased her, I am the executor of the estate.
The law firm that drafted her will insists they cannot release it to me until the Bernalillo County Clerk records it (supposedly, after many delays, it’s been sent to the county clerk). County clerk (and probate court) in Bernalillo County insist that they do not record wills, as that makes them public information, with wills often containing confidential information.
I need this will as a means to provide proof of my executorship, so that I can close out accounts, and get the estate (maybe $8,000 all told between automobile, bank account, and moneys due back from secured credit accouts) all wrapped up.
The local attorney that we used for my parents wills says he cannot advise on this.
How do I go about handling this so I can get this wrapped up, and get back on with my life?
Mods: Posted in FQ, because it hopefully has a factual answer. Noting that it might invite opinions, a move to IMHO is up to you.
I honestly think the only correct answer is to find an attorney who will help you navigate all of this.
I believe you can pay him/her from the money in the estate before whatever is left over is disbursed to whoever. I am sure the attorney can answer that too.
I am not clear on the problem. How long is it expected to take to get the death recorded? Is there some pressure coming from somewhere to settle accounts ASAP? What’s at risk for waiting? And yeah, talk with an attorney.
That’s one of the problems - SSA reported to her bank that she is deceased. While it is set up to be Payable Upon Death to me, until I can get the proof of executorship, I can’t get at her funds. Can’t even cancel her AAA, auto insurance, storage unit, nothing. I have to pay out of pocket and just keep the receipts. I even paid the $1900 for her cremation. Nothing is easy, so saith Jethro Tull.
The problem, condensed to a nutshell - the attorneys that hold the original copy of her will, which names me executor, will not send me a copy. They insist that they must forward it to the county clerk in the county where she passed so that they can record it, and then the county can release a copy to me. The county clerk states that they do not record wills, as that makes them public record, which exposes confidential information. I cannot close out any of her accounts without that proof of executorship to go along with the 20 death certificates I ordered from the funeral home. So we keep racking up charges for AAA, auto insurance, storage unit, cell phone, streaming services, ad infinitum.
That seems weird to me. I thought that wills are always public record after the person dies. I’ve been the executor on four wills and this has always been the case, but my experience is only in two states, neither of which is New Mexico.
Googling a bit, this says that a will does become public record in New Mexico after the person dies, even while the will is in probate, as I thought. This is a page from the Bernalillo County Probate Court which describes how to open a probate case. Have you done that? If it were me, I would contact an estate attorney in Bernalillo County, who would certainly know how to navigate this.
Okay I see the problem. Not sure how you are supposed to navigate that.
I thought Transfer On Death (TOD) for financial accounts meant the financial institution moved the funds/accounts directly to you, no probate. I had this with my father - I had to send an original copy of his death certificate and his TOD instructions were executed by his financial institution.
Also, I learned that any of his debts and account balances were his, and not mine, and not my responsibility to resolve. This was in California, so it may be different in NM, but you may be able to just stop paying his bills (maybe not the storage locker, tho). I did pay off final balances from his bank account for a few things as I closed his accounts, but I didn’t have to.
#1, without knowing what’s in the will, I can’t say whether it would be worth opening a probate case. #2, with the value of the estate at roughly $8,000, can’t see that it would be worth it in legal fees. That’s before taking out the almost $1,900 I spent on her cremation. Guess I don’t see why this should be so difficult on every front. I’d just like to be done with it. And I do intend to pay the bills she owes, but don’t want them to keep accruing with her having passed.
From a legal standpoint, you might not actually be the executor since there is a will. When someone writes a will, they list one or more people to be the executor. Chances are it’s a relative, but it could be a friend or some other person. I’m not sure if you can petition the probate court to be the executor without presenting the will that says you are the executor. If there was no will, then you could ask the court to appoint you to be the executor since you are an eligible person for that role.
Is the law firm in NM? That seems weird that they think they have to file it with the county and the county says they don’t do that. It seems like the law firm should know how to handle this. Perhaps the law firm meant that they couldn’t release it until you were declared the executor by the Bernalillo county probate office? Try to find the will at her house. She should have a copy somewhere.
I’ve been an executor three times, but in a completely different state. What seems odd to me is the part about the County Clerk. It was the County Clerk who had to issue all the paperwork authorizing the banks to turn over control of the accounts, transferring vehicle titles, etc. It almost sounds to me like the County Clerk’s office doesn’t realize that your relative is deceased. They are saying they won’t record the will PRIOR to death because it would become public. In other words, will (from attorney’s office) + death certificate + petition for recognition/appointment as executor = all the paperwork you need to take control.
One of the times I was executor, there was no will at all. Because the value of the estate was under a certain amount, I only needed a death certificate, a petition to be named as executor, and a sworn affidavit that the estate was under $XXX. The County Clerk told me how to do everything…no attorney at all.
The attorney is clear back in NC, where she and her husband were living when they drafted the wills. When he passed, she moved back out west. She had copies of the powers of attorney naming me if her husband passed, but she did not have a copy of her will. I’m going on her word that I was named executor. I’ll reach out to the county clerk again on Tuesday, doubt they’ll be open tomorrow.
I think some states have a way to file wills where they remain sealed until the person’s death. Maybe NC has something like that and the NC law firm is expecting the same in NM. Did you mention you had PoA when you spoke to them? Maybe that will allow them to release the will. I think you’ll need to pursue getting the will from the NC law firm. I don’t think the NM court will be very helpful until then. If there’s a will, then they’re going to want to see it.
It would be helpful to speak with an attorney about how to get the will. It would be costly to have them handle the whole estate, but you could do a 1-hour consultation for $100-$200. A NC lawyer would probably be the best since you need to get the will from a NC law firm. It shouldn’t be too hard to find an estate lawyer. Estate law is pretty common. There are even strip-mall places which do estate planning. You could probably have a consultation over the phone about how to get the will.
I don’t know about your situation but when my Mom died in March all we needed was a certified copy of the death certificate (provided by the funeral home) and a certificate of trust (provided by the attorney.)
[Moderating]
This question calls for professional advice. Here on the SDMB, we do not put professional advice questions in FQ (Factual Questions), but rather in IMHO (In My Humble Opinion). This is meant to emphasize that any answers you get here are probably not from an actual expert, and even if they are actual experts, they probably aren’t experts on the specific rules of your specific jurisdiction, or the specific details of your case, and even if they’re actually experts on all of that, you have no way of verifying that they’re actual experts (on the Internet, nobody knows you’re a dog).
Do you have a copy of her death certificate? I would call these places and tell them she has died and to stop billing her. When my mother died, most places were terrific - the person on the phone offered condolences and immediately canceled invoicing. Someone, I think it was AmEx, even wrote off the final credit card payment she had due. While I was executor of the estate, I didn’t have to prove that to anyone; if they wanted proof of anything, it was simply the death certificate.
Even if places don’t stop billing, that doesn’t mean you need to keep paying for things like AAA or auto insurance. Why would it matter? She’s not going to be in a car accident and no one cares if her credit rating is ruined.
I can see how you might want to keep paying storage fees if you don’t want her stuff that is stored sold at auction. Even in that case you probably have a 1-3 months grace period, however.
I had a similar experience. Most places were happy to do basic stuff like that with just a death certificate. I only pulled out the document showing i was the executor in a couple of situations.
I think there is definitely some confusion with the attorney holding the will. If you are named as the executor, they should be taking direction from you. If they are not, they shouldn’t be saying anything at all. It’s normally up to the executor to start the probate process, which you can’t do until you get the original will in hand.