1. A. As to claims presented in the manner described in Section 45-3-804 NMSA 1978 within the time limit prescribed in Section 45-3-803 NMSA 1978, the personal representative may mail a notice to any claimant stating that the claim has been disallowed. If after allowing or disallowing a claim the personal representative changes his decision concerning the claim, he shall notify the claimant. The personal representative may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has run and the claim has been barred. Every claim that is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the district court or commences a proceeding against the personal representative not later than sixty days after the mailing of the notice of disallowance or partial allowance. Failure of the personal representative to mail notice to a claimant of action on his claim for sixty days after the time for original presentation of the claim has expired has the effect of a notice of allowance.
2. B. After allowing or disallowing a claim the personal representative may change the allowance or disallowance as hereafter provided. The personal representative may prior to payment change the allowance to a disallowance in whole or in part but not after allowance by a court order or judgment or an order directing payment of the claim. He shall notify the claimant of the change to disallowance, and the disallowed claim is then subject to bar as provided in Subsection A of this section. The personal representative may change a disallowance to an allowance, in whole or in part, until it is barred pursuant to Subsection A of this section; after it is barred, it may be allowed and paid only if the estate is solvent and all successors whose interests would be affected consent.
3. C. Upon the petition of the personal representative or of a claimant in a proceeding for the purpose, the district court may allow in whole or in part any claim presented to the personal representative or filed with the clerk of the district court in due time and not barred by Subsection A of this section. Notice in this proceeding shall be given to the claimant, the personal representative and those other persons interested in the estate, as the court may direct by order entered at the time the proceeding is commenced.
4. D. A judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim.
5. E. Unless otherwise provided in any judgment in another court entered against the personal representative, allowed claims bear interest at the legal rate for the period commencing sixty days after the time for original presentation of the claim has expired unless based on a contract making a provision for interest, in which case they bear interest in accordance with that provision.

History: 1953 Comp., § 32A-3-806, enacted by Laws 1975, ch. 257, § 3-806; 1993, ch. 174, § 74.

ANNOTATIONS

Official comments. — See Commissioners on Uniform State Law official comment to 3-806 UPC.

Compiler's notes. — This section includes within its scope some of the functions of former 31-8-5, 1953 Comp.

The 1993 amendment, effective July 1, 1993, substituted "45-3-804 NMSA 1978" and "45-3-803 NMSA 1978" for "3-804" and "3-803" in the first sentence in Subsection A; added Subsection B; redesignated former Subsections B to D as Subsections C to E; and made minor stylistic changes.

Purpose of enactments regarding claims and appeals. — The enactments providing for proof of claims against estates and for the disposition of appeals from orders which allow or reject them are complementary and are designed to speed administration and closing of estates. Levers v. Houston, 1945-NMSC-017, 49 N.M. 169, 159 P.2d 761.

Inapplicable to estate devisees. — This section did not provide the controlling relevant limitations where petitioners were not creditors, but devisees of the estate. Accordingly, the relevant limitations period was found in 45-3-1006 NMSA 1978. In re Estate of Gardner, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.

Requirements are mandatory. — Neither the heirs nor the personal representative can be estopped from asserting or can waive the mandatory requirements of the nonclaim statute, which is comprised of this section and 45-3-803 and 45-3-804 NMSA 1978. In re Estate of Mayfield, 1989-NMSC-016, 108 N.M. 246, 771 P.2d 179.

Failure to comply with reasonable procedural requirements defeats relief. — Failure to comply with reasonable procedural requirements regulating appeals to the district court operates to defeat relief sought to be obtained by the appeal. Levers v. Houston, 1945-NMSC-017, 49 N.M. 169, 159 P.2d 761.

Compliance with petition requirements. — While it is possible that Subsection A could be satisfied other than by strict adherence to its formal dictates, it is hard to see how a claimant, who does not engage in any legal activity of record within the limitation period of the nonclaim statute, could comply substantially with its mandatory requirements. In re Estate of Mayfield, 1989-NMSC-016, 108 N.M. 246, 771 P.2d 179.

Allowance of claim against decedent's estate is a judicial act, with the force and effect of a judgment; it is final and conclusive between parties until set aside, and cannot be attacked collaterally. In re Fields Estate, 1936-NMSC-060, 40 N.M. 423, 60 P.2d 945; Ross v. Lewis, 1917-NMSC-085, 23 N.M. 524, 169 P. 468.

Section consistent with 45-3-804 NMSA 1978. — Section 45-3-804 NMSA 1978 is consistent and harmonious with Subsection A of this section, if the extension authorized by 45-3-804 NMSA 1978 is granted prior to expiration of the 60-day period. Mathieson v. Hubler, 1978-NMCA-119,92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554.

Rule 6(b), N.M.R. Civ. P. (now see Rule 1-006B NMRA) may not be applied to extend time limitation of Subsection A of this section because such an extension would be inconsistent with the barring of a disallowed claim unless proceedings were commenced not later than 60 days after mailing of notice of disallowance. Mathieson v. Hubler, 1978-NMCA-119,92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554.

Disallowed claim is barred by Subsection A of this section unless the claimant files a petition for allowance in district court or commences a proceeding against the personal representative not later than 60 days after the mailing of the notice of disallowance or partial disallowance. Mathieson v. Hubler, 1978-NMCA-119,92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554.

District court jurisdiction of account due while suit pending. — Neither the district court of the county where probate proceedings are pending nor of any other county can entertain jurisdiction of a suit on an account due brought against administrator of a decedent's estate, where the claim was never rejected by the court in which the probate proceedings are pending. McBeath v. Champion, 1951-NMSC-007, 55 N.M. 114, 227 P.2d 625.

Priority of New Mexico allowance over foreign court disallowance. — The judgment of a New Mexico court allowing claims against an estate takes precedence over a partial disallowance of the claims by a foreign court. Ware v. Farmers' Nat'l Bank, 1933-NMSC-066, 37 N.M. 415, 24 P.2d 269.

Filing a wrongful death claim in a formal probate proceeding constitutes the filing of a "suit" and invokes the duty to defend. — Where a liquor liability insurance policy provided that the insurer had the right and duty to defend the insured against any "suit" seeking damages for injuries to which the policy applied and the policy defined "suit" to mean a civil proceeding in which damages, because of injury to which the insurance applied, are alleged, the filing of a wrongful death claim in a formal probate constituted a "suit" as defined in the policy and invoked the duty to defend. Garcia v. Underwriters at Lloyd’s London, 2007-NMCA-042, 141 N.M. 421, 156 P.3d 712, aff'd, 2008-NMSC-018, 143 N.M. 732, 182 P.3d 113.

Vacation pay claims. — Evidence was sufficient to support the claims for two weeks' vacation pay each year of two employees who worked for the decedent and decedent's sibling as private nurses, although the written notations that each employee testified the employee and the decedent signed could not be located after the decedent's death, but the amount awarded did not follow from the only factors in the record , i.e., length of employment and rate of pay, requiring remand for further fact-finding. In re Estate of Bergman, 1988-NMCA-061, 107 N.M. 574, 761 P.2d 452.

Decedent’s promissory note. — Since decedent could not have enforced payment of a promissory note from decedent against the entire community estate, because decedent failed to have his spouse sign the note, decedent’s child, to whom the note was devised, could not do so either, and the trial court thus erred in failing to limit the child’s claim as one against the separate and community personal property of the estate; when a member of a community takes a promissory note from the member as a member of the community, the member is charged with the knowledge that any document purporting to pledge the credit of the community can only refer to the community's personal property. In re Estate of Shadden, 1979-NMCA-078, 93 N.M. 274, 599 P.2d 1071, cert. denied, 93 N.M. 172, 598 P.2d 215, overruled on other grounds by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051, 116 N.M. 254, 861 P.2d 935.

Claims by executor. — Payments made by the executor to the executor for salary due from the decedent, reimbursement for a set of scales installed after decedent's death on ranch property inherited by executor, and reimbursement for ranch expenses and interest paid on loan to operate the ranch were not based on claims filed or by order of the district court, were improper, and could not be allowed. In re Will of Hamilton, 1981-NMSC-120, 97 N.M. 111, 637 P.2d 542.

Failure to prove payment of taxes. — Where the personal representative of the estate of the personal representative’s step parent filed an affidavit claiming the personal representative had individually paid the property taxes on the estate’s real property for ten years; and the surviving spouse of the decedent, who was the parent of the personal representative, had possession and control over the property of the estate and there had been no accounting for the assets of the estate as required by the Probate Code, the district court did not err in finding that the personal representative had failed to prove that the personal representative had paid the taxes from the personal representative’s personal funds rather than from the estate’s funds. Duran v. Vigil, 2012-NMCA-121, 296 P.3d 1209, cert. denied, 2012-NMCERT-011.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Allowance out of property or funds of estate for services of attorney rendered in protection of estate of decedent, 49 A.L.R. 1161, 107 A.L.R. 749.

Direction of verdict based on testimony of interested witnesses as to claims against estates of deceased persons, 72 A.L.R. 58.

Allowance out of decedent's estate for services rendered by attorney not employed by executor or administrator, 79 A.L.R. 521, 142 A.L.R. 1459.

Who is entitled to contest, or appeal from, allowance of claim against decedent's estate, 118 A.L.R. 743.

Rank of creditor's claim against decedent's estate or his rights in respect of property of estate as affected by reduction of his claim to judgment against executor or administrator, or levy of attachment or execution, 121 A.L.R. 656.

Right of executor or administrator to contest or appeal from court's rejection of claim against decedent's estate, 129 A.L.R. 922.

Claims based on provisions of statutes relating specifically to rights, duties and obligations between employer and employee as subject to arbitration provisions of contracts or statutes, 149 A.L.R. 276.

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

Interest on decree or judgment of probate court allowing a claim against estate or making an allowance for services, 54 A.L.R.2d 814.

Appealability of probate orders allowing or disallowing claims against estate, 84 A.L.R.4th 269.

34 C.J.S. Executors and Administrators § 426.