Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall take all steps reasonably necessary for the management, protection and preservation of the estate in his possession. He may maintain an action to recover possession of property or to determine the title thereto.

History: 1953 Comp., § 32A-3-709, enacted by Laws 1975, ch. 257, § 3-709.

Official comments. — See Commissioners on Uniform State Law official comment to 3-709 UPC.

Cross references. — For recovery of nontestamentary transfers at death, see 45-6-201 NMSA 1978.

Breach of duty. — A personal representative breached the personal representative's duty to preserve the estate by wrongfully distributing the assets where the personal representative did so in contravention of the will's terms and without a court order. In re Estate of Gardner, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.

Right extends only to administration. — A personal representative has a right to possession for purposes of administering the estate, not for personal use. In re Estate of Lopez, 1987-NMCA-087, 106 N.M. 157, 740 P.2d 707.

Continuing fiduciary duty to protect assets of estate. — The personal representative of an estate has a continuing fiduciary duty to protect the assets of the estate and to properly account therefor until his appointment is terminated by court order or his death. Bowman v. Butler, 1982-NMCA-108, 98 N.M. 357, 648 P.2d 815.

Effect of divorce. — Since a divorce decree between the decedent and decedent's former spouse disposed of the savings account with its payable on death provision in favor of the decedent, the ex-spouse was precluded from claiming the account under the payable on death provision, and for the same reason the parties' savings account became property of the decedent's estate, as did life insurance policies and the decedent's Keogh fund originally giving the ex-spouse a beneficial interest. Romero v. Melendez, 1972-NMSC-041, 83 N.M. 776, 498 P.2d 305.

Rights to possession. — When there is litigation pending between the personal representative and the legatee as to the separate or community status of real property of the estate, the legatee is entitled to retain possession of the property and maintain an action in forcible entry and detainer to eject the administrator from possession of the property in issue, although the executor has as the executor's sufficient protection the right to petition the court to sell the property, if need be, to pay the debts of the estate. Conley v. Wikle, 1960-NMSC-009, 66 N.M. 366, 348 P.2d 485.

Possession of money due from heir. — An administrator is entitled to retain sufficient of the share of an heir in money derived from decedent's estate to pay a debt which the heir owes to the estate. In re Sheley's Estate, 1931-NMSC-011, 35 N.M. 358, 298 P. 942.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of executor or administrator to avoid contract or conveyance by decedent on ground of mental incapacity, 1 A.L.R. 1517.

Right of administrator de bonis non to recover proceeds of personal property of the estate converted by his predecessor, 3 A.L.R. 1252.

Declaratory judgment as to management of estate, 12 A.L.R. 76, 19 A.L.R. 1124, 50 A.L.R. 42, 68 A.L.R. 110, 87 A.L.R. 1205, 114 A.L.R. 1361, 142 A.L.R. 8

Inspection of corporate books and records by personal representative of deceased stockholder, 22 A.L.R. 98, 43 A.L.R. 783, 59 A.L.R. 1373, 80 A.L.R. 1502, 174 A.L.R. 262, 15 A.L.R.2d 11.

Right of personal representative of leaseholder to enforce option to purchase contained in lease, 38 A.L.R. 1176, 45 A.L.R.2d 1034.

Death of party between giving and exercise of option to purchase as affecting rights of personal representatives of giver, 50 A.L.R. 1322.

Right or duty of executor or administrator to complete or enforce decedent's executory contract for purchase of real property, 58 A.L.R. 436.

Right of executor or administrator of claimant to file mechanic's lien, 83 A.L.R. 21.

Liability for interest or profits on funds of estate deposited in bank or trust company which is itself executor, administrator, trustee or guardian, or in which executor, etc., is interested, 88 A.L.R. 205.

Power of sale as including power to mortgage, 92 A.L.R. 882.

Power of sale of real estate given to executor as impliedly conferring right to possession, 94 A.L.R. 1140.

Power and duty of executor or administrator as to protection of investment in stocks by submitting to voluntary assessment, 104 A.L.R. 979.

Liability of executor or his sureties for losses incurred in carrying on business pursuant to direction or permission of will, 109 A.L.R. 639.

Loss or depreciation of assets for which executor, administrator or trustee is not responsible, as affecting the amount of his compensation, 110 A.L.R. 994.

Mortgage or other lien on real property of decedent, right of executor or administrator personally to purchase, and enforce same, 117 A.L.R. 1371.

Liability of estate for torts of executor, administrator or trustee, 127 A.L.R. 687.

Duty and liability of executor (or administrator with will annexed) in respect of personal property specifically bequeathed, and not needed for payment of debts, 127 A.L.R. 1071.

Beneficiary's consent to, acquiescence in, or ratification of, improper investment, 128 A.L.R. 4

Right of beneficiaries of decedent's estate to maintain action independent from executor or administrator to enforce contracts or other transactions entered into by executor or administrator on behalf of the estate, 135 A.L.R. 1130.

Right or duty of executor or administrator to require security from life tenant, 138 A.L.R. 443.

Corporate executor's or administrator's transactions with affiliated corporation as violation of rule against self-dealing, 151 A.L.R. 905.

Tax on real estate of decedent, duty or right of executor or administrator to pay, 163 A.L.R. 724.

Power of sale conferred on executor by testator as authorizing private sale, 11 A.L.R.2d 955.

Implied power of executor to sell real estate, 23 A.L.R.2d 1000.

Power of executor to create easements, 44 A.L.R.2d 573.

Construction and effect of will authorizing or directing executor to retain investments received under will, 47 A.L.R.2d 187.

Power of personal representative to repair personal property of estate, 64 A.L.R.2d 857.

Power of executor with power to sell or to lease real property, or to do both, to give an option to purchase, 83 A.L.R.2d 1310.

Who may exercise voting power of corporate stock pending settlement of estate of deceased owner, 7 A.L.R.3d 629.

33 C.J.S. Executors and Administrators § 295.