A. Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the district court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will:

(1) contains the original will, unless excused under the provisions of Subsection B of this section;

(2) requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs; and

(3) contains the statements required for informal applications as stated in Subsection A of Section 3-301 [45-3-301 NMSA 1978] and the statements required by Paragraphs (1) through (3) of Subsection B of Section 3-301 [45-3-301 NMSA 1978].

B. If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will and why it is unavailable.

C. A petition for adjudication of intestacy and appointment of a personal representative must request a judicial finding and order that the decedent left no will and, determining the heirs, contain the statements required by Subsections A and D of Section 3-301 [45-3-301 NMSA 1978] and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of a personal representative, in which case, the statements required by Paragraph (2) of Subsection D of Section 3-301 [45-3-301 NMSA 1978] may be omitted.

History: 1953 Comp., § 32A-3-402, enacted by Laws 1975, ch. 257, § 3-402.

Official comments. — See Commissioners on Uniform State Law official comment to 3-402 UPC.

Law reviews. — For survey, "Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration," see 6 N.M.L. Rev. 213 (1976).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills § 842.

Establishment of will lost before testator's death, 34 A.L.R. 1304.

Proof of contents in establishment of lost will, 126 A.L.R. 1139.

Proof of nonrevocation in proceeding to establish lost will, 3 A.L.R.2d 949, 18 A.L.R.3d 606, 86 A.L.R.3d 980, 70 A.L.R.4th 323.

Who is resident within meaning of statute prohibiting appointment of nonresident executor or administrator, 9 A.L.R.4th 1223.

Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative, 11 A.L.R.4th 638.

Liability in damages for interference with expected inheritance or gift, 22 A.L.R.4th 1229.

Sufficiency of evidence of nonrevocation of lost will not shown to have been inaccessible to testator - modern cases, 70 A.L.R.4th 323.

95 C.J.S. Wills § 373.