If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of the personal representative's fiduciary duty to the same extent as a trustee of an express trust. The rights of purchasers and others dealing with a personal representative shall be determined as provided in Sections 45-3-713 and 45-3-714 NMSA 1978.

History: 1953 Comp., § 32A-3-712, enacted by Laws 1975, ch. 257, § 3-712; 2016, ch. 69, § 714.

Official comments. — See Commissioners on Uniform State Law official comment to 3-712 UPC.

The 2016 amendment, effective July 1, 2016, provided that a personal representative is liable to interested persons for damages from a breach of fiduciary duty to the same extent as a trustee of an express trust; after "resulting from a breach of", deleted "his" and added "the personal representative's", after "fiduciary duty", added "to the same extent as a trustee of an express trust", and after "Sections", deleted "3-713 and 3-714" and added "45-3-713 and 45-3-714 NMSA 1978".

Cause of action arises upon termination of appointment. — A cause of action for conversion, breach of fiduciary duty and right of replevin does not arise until the termination of the representative's appointment. Bowman v. Butler, 1982-NMCA-108, 98 N.M. 357, 648 P.2d 815.

"Interested party". — A personal representative had a fiduciary duty to make a party aware that a later-offered will had been found as soon as it was found, because that will established that the party had a property right in, and/or claim against, the estate and thus was an "interested party". Pidcock v. Apodaca, 2001-NMCA-037, 130 N.M. 460, 26 P.3d 764, cert. denied, 130 N.M. 484, 27 P.3d 476.

Breach of fiduciary duty clearly established. — Breach of fiduciary duty was clearly established by the evidence where guardian of decedent-mother's estate sold entrusted property, filed tax returns, collected royalties and income, and entered into mineral and grazing leases therewith. In re Estate of Gardner, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Liability of personal representative with respect to completion of improvements, 5 A.L.R.2d 1250.

Personal liability of executor or administrator for interest on legacies or distributive shares where payment is delayed, 18 A.L.R.2d 1384.

Accountability of personal representative for his use of decedent's real estate, 31 A.L.R.2d 243.

Construction and effect of 31 U.S.C. § 192 imposing personal liability on fiduciary for paying debts due by person or estate for whom he acts before paying debts due United States, 41 A.L.R.2d 446.

Replevin or similar possessory action, availability to one not claiming as heir, legatee or creditor of decedent's estate against personal representative, 42 A.L.R.2d 418.

Liability of personal representative for losses incurred in carrying on, without testamentary authorization, decedent's nonpartnership mercantile or manufacturing business, 58 A.L.R.2d 365.

Coexecutor's or coadministrator's liability for defaults or wrongful acts of fiduciary in handling estate, 65 A.L.R.2d 1019.

Place of personal representative's appointment as venue of action against him in his official capacity, 93 A.L.R.2d 1199.

Liability of executor or administrator for negligence or default in defending action against estate, 14 A.L.R.3d 1036.

Liability of executor or administrator, or his bond, for loss caused to estate by act or default of his agent or attorney, 28 A.L.R.3d 1191.

Liability of executor, administrator, trustee or his counsel for interest, penalty or extra taxes assessed against estate because of tax law violations, 47 A.L.R.3d 507.

Liability of executor or administrator to estate because of overpaying or unnecessarily paying tax, 55 A.L.R.3d 785.

Garnishment against executor or administrator by creditor of estate, 60 A.L.R.3d 1301.

33 C.J.S. Executors and Administrators § 239.