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Filing Probate Years After a Death Can Cause Problems

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Probate filed years after a death

A recent New Mexico court case reminds us what can happen when families file for probate years after a death. The story takes several twists and turns, but it’s worth laying out the details.

Marie in life

Herbert and Marie Welch lived in Carlsbad, New Mexico. They had no children, either together or from other relationships. In 1974, they signed wills leaving everything to one another. Herbert’s will also said that if he died first, Marie would leave all of his community property to his brother and sister, or to their children.

When Herbert died shortly after the wills were signed, Marie opened a New Mexico probate proceeding. Since she had survived Herbert, everything went to her; she transferred all his property into her name and closed the probate in 1975.

Among the things transferred to Marie were several mineral interests in New Mexico and Montana. In the year after Herbert’s death, Marie signed a new will and then moved to Florida.

Marie’s 1976 will might have named her brother, a nephew and a cousin as co-executors. But that probably didn’t matter, since in 1980 she signed another new will. It named her cousin Samuel Alderman as executor, and left the mineral rights she had gotten from her late husband to his nieces and nephews. She gave that will to Samuel for safekeeping. Marie died in 1987.

No probate filed for years after death

Shortly after Marie’s death, nephew Ralph Griffin decided something should be done about her estate. He knew there had been a 1976 will, and that he was one of the co-executors in that will. Although he knew of the will, he didn’t know what it said about distribution of her estate. He wrote to Samuel asking if Samuel had the will or had done anything to probate Marie’s estate.

Unfortunately, Samuel apparently had legal problems of his own. He later said that he was hiding from his creditors, and didn’t want to deal with Marie’s will or estate. He ignored Ralph’s inquiries. Ralph even hired a private investigator to track down Samuel — but to no avail.

Ralph didn’t do anything more about Marie’s estate for years. In 2007 — more than twenty years late — Ralph finally filed a New Mexico probate proceeding. Why wait so many years after a death to file? The answer is unclear, but we might infer that someone expressed interest in purchasing Marie’s oil and gas rights.

The first – and second – probate proceedings

Ralph gave up on finding Samuel — or Marie’s will. So in his 2007 probate filing he alleged that Marie had no will, and that he was her only heir. In New Mexico (as in Arizona), he was required to give notice to any other heirs; since he did not know where Samuel was, he published notice of the probate in local newspapers in New Mexico.

After a cursory hearing, the probate judge ruled that Marie had died intestate, and that her mineral interests should be transferred into Ralph’s name. Ralph completed the necessary steps, and closed the first probate proceeding.

Over the next few years, Ralph transferred those mineral rights to another entity he controlled. In 2010 he sold the mineral interests to an unrelated company, Premier Oil & Gas, Inc. Then, in 2012, Samuel resurfaced, and produced Marie’s 1980 will — which Ralph had apparently never seen or even heard about before.

Samuel filed a new probate proceeding, asking to be appointed as personal representative. The new probate proceeding was more than twenty-five years after Marie’s death. Ralph objected; he argued against a new probate since Marie’s estate had been settled five years before. The probate court ultimately admitted Marie’s 1980 will to probate, and appointed Samuel as personal representative.

Ralph appealed, and the New Mexico Court of Appeals overturned the appointment and sent the case back to the probate court for further review. After the appeal, Marie’s late husband’s family (who were to receive the mineral interests under the 1980 will), Premier Oil & Gas (the purchaser of those rights) and others.

Ultimately, the probate court ruled that the existence or validity of Marie’s will was decided in 2007, and that no one had appealed or challenged that ruling. The court also upheld Premier’s purchase of the mineral (oil and gas) rights.

A second trip to the Court of Appeals

This time, Marie’s late husband’s family appealed the probate court order. They argued that Ralph’s 2007 probate proceeding was void. Furthermore, they argued that Marie herself had acquired the mineral interests improperly, since Herbert’s will directed that those interests would go to his family on Marie’s death.

The New Mexico Court of Appeals last week sorted through the complicated history of Marie Welch’s estate(s) and will(s). The appellate court ruled that:

  1. Herbert’s estate left everything to Marie. His provision about what would happen if she died first was not controlling, and he had not created any kind of trust to hold the mineral interests he left to her.
  2. Ralph’s 2007 probate proceeding was void. He had not given the probate court enough information about the existence of Samuel, the possibility of a will or the likelihood that there might be other heirs or devisees. Though he had looked for Samuel shortly after Marie’s death, he hadn’t tried again in the almost two decades between her death and his probate filing.
  3. That meant that the 1980 will was properly admitted to probate, and the relatives of Herbert Welch were entitled to receive the mineral interests in dispute.
  4. However, at the time that Premier Oil & Gas, Inc., bought those mineral rights, the record seemed clear. Ralph appeared to have clear title to the rights, and Premier’s own title search did not turn up any problems. They paid a reasonable price, they did not collude with Ralph, and they should be protected. The company was what the law calls a “bona fide purchaser for value,” and their right to the mineral interests could not be taken away.

In the Matter of the Last Will and Testament of Welch, October 15, 2020.

What does that mean for Marie Welch’s estate — or for outside observers?

The problem of late probate proceedings — filed years after a death — is surprisingly common. We often see families delaying probate administration because “everyone knows” who has what interest in the decedent’s property. Maybe one sibling continues to live in the family home for a few years. Perhaps no one initiates anything until that sibling dies, or becomes incapacitated, or marries. That’s usually a recipe for family discord and disagreements.

It took Marie Welch’s devisees (the people named in her will) more than a quarter of a century to act. In that time, original wills were secreted or misplaced. Principal parties (including Samuel and also some of Herbert Welch’s nieces and nephews) had died. That delay made completion of her estate administration incalculably more difficult.

It seems likely that Herbert Welch’s grand-nephews and grand-nieces will be able to collect some of the value of those mineral rights from Ralph, though it will likely take more litigation. Will they recover what Premier paid for the rights, or the current value of those rights? We likely will never know.

The key lesson for the rest of us: family members, heirs and devisees need to wrap up administration of the estate of a decedent. It doesn’t have to be completed in a week, or a month, or even a year — but two decades is too long.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.