Unless previously barred by adjudication and except as provided in the closing statement, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert such rights is commenced within six months after the filing of the closing statement. The rights thus barred do not include rights to recover from a personal representative for fraud, misrepresentation or inadequate disclosure related to the settlement of the decedent's estate.
History: 1953 Comp., § 32A-3-1005, enacted by Laws 1975, ch. 257, § 3-1005.
ANNOTATIONSOfficial comments. — See Commissioners on Uniform State Law official comment to 3-1005 UPC.
Compiler's notes. — This section is similar to former 31-12-13, 1953 Comp.
Exception for fraud. — The record did not support an heir's claim that the personal representative improperly or fraudulently took money received from the September 11th victim compensation fund of 2001 which was awarded when the decedent died on September 11, 2001, so as to lift the six-month statute of limitations under 45-3-1005 NMSA 1978; only one claimant was permitted to file a claim for compensation from the fund, the personal representative filed a claim and gave notice to all heirs and potential beneficiaries of the decedent's estate, including the heir in the instant case, who chose not to participate in or contest the claim before the special master. Marchand v. Marchand, 2007-NMCA-138, 142 N.M. 795, 171 P.3d 309, aff'd, 2008-NMSC-065, 145 N.M. 378, 199 P.3d 281.
Interest of pretermitted child was not affected by decedent's will. — The final decree, purporting to distribute pursuant to the last will and testament, distributed only that portion which passed to executrix under the will and did not include intestate share of pretermitted child. Consequently, the six-month period of limitations in former 31-12-13 1953 Comp., is not applicable in suit charging an interest. Hagerman v. Gustafson, 1973-NMSC-058, 85 N.M. 420, 512 P.2d 1256 (decided under former law).
Am. Jur. 2d, A.L.R. and C.J.S. references. — When statute of limitations begins to run against action on bond of personal representative, 44 A.L.R.2d 807.
34 C.J.S. Executors and Administrators § 729.