Albuquerque, NM asked in Estate Planning and Probate for New Mexico

Q: My mother passed away last year and I am the successor in interest to the estate but I also have 1 brother.

I lived there with my mom but after she passed I moved in with my dad so the property was empty. The property was vandalized and or stuff stolen and the insurance is going to cover the damages. Is my brother entitled to half of the insurance money for the break in

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1 Lawyer Answer
Evan Woodward
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  • Probate Lawyer
  • Albuquerque, NM
  • Licensed in New Mexico

A: I am sorry that you lost your mother.

The answer to your question depends on the fact scenario involving your mother's Estate at the time of her passing. If your mother died with a valid will - the provisions of the will must be followed. Therefore, whomever inherited the damaged property would be entitled to those insurance benefits/payouts as well as the property itself.

However, if your mother died intestate (without a will) then it becomes a bit more tricky to answer. If your mother was unmarried at the time of her death and died intestate, you and your brother (along with any other siblings) would inherit her Estate equally. NMSA 1978, § 45-2-13. Therefore, you would share in the insurance benefits equally and/or have the option to use them to fix up the property, sell it and split the proceeds evenly.

However, if she was legally married at the time of her death (to your father or anyone else) her spouse at the time of her death is entitled to one quarter of her intestate Estate under NMSA 1978, § 45-2-102(A)(2). Further, they would be entitled to one half of the community property in the marriage. NMSA 1978, § 45-2-102(B). I hope this answers your question and/or gets you headed in the right direction.

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