A. A formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as personal representative, or of one who previously has been appointed personal representative in informal proceedings, if an issue concerning the testacy of the decedent is or may be involved, is governed by Section 3-402 [45-3-402 NMSA 1978], as well as by this section. In other cases, the petition shall contain or adopt the statements required by Subsection A of Section 3-301 [45-3-301 NMSA 1978] and describe the question relating to priority or qualification of the personal representative which is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter. If the proceeding is commenced after appointment, the previously-appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the district court orders otherwise.

B. After notice to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously-appointed personal representative, and any person having or claiming priority for appointment as personal representative, the district court shall determine who is entitled to appointment under Section 3-203 [45-3-203 NMSA 1978], make a proper appointment and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under Section 3-611 [45-3-611 NMSA 1978].

History: 1953 Comp., § 32A-3-414, enacted by Laws 1975, ch. 257, § 3-414.

Official comments. — See Commissioners on Uniform State Law official comment to 3-414 UPC.

Limitations on informally appointed personal representative. — Once the district court denied a petition for formal appointment of the decedent's child as personal representative and ruled that the decedent's spouse should continue as personal representative, the limitation on the decedent's spouse's power as informally appointed personal representative in 45-3-414A NMSA 1978 no longer applied. In re Estate of Lopez, 1987-NMCA-087, 106 N.M. 157, 740 P.2d 707.

Law reviews. — For article, "The Use of Revocable Inter Vivos Trusts in Estate Planning," see 1 N.M.L. Rev. 143 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 33 C.J.S. Executors and Administrators § 13.