       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ________________

Filing Date: August 19, 2013

Docket No. 31,178

IN THE MATTER OF THE ESTATE
OF HARBHAJAN SINGH KHALSA
YOGIJI, Deceased,

INDERJIT KAUR PURI,

       Petitioner-Appellant,

v.

SHAKTI PARWHA KAUR KHALSA,

       Respondent-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Barbara J. Vigil, District Judge

The Soni Law Firm
Surjit P. Soni
Pasadena, CA

for Appellant

Sanders & Westbrook, PC
Maureen A. Sanders
Albuquerque, NM

Wray & Girard, PC
Jane Katherine Girard
Katherine Wray
Albuquerque, NM

for Appellee

                               OPINION


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FRY, Judge.

{1}      This case requires us to interpret NMSA 1978, Section 45-3-108(A)(4) (2011), which
provides an exception to the Probate Code’s three-year time limit for opening a formal
testacy or appointment proceeding under certain circumstances. Under this exception, a
personal representative appointed more than three years after the decedent’s death has the
right to possess estate assets only to the extent necessary to confirm title in those assets, and
no claims, other than for administrative expenses, may be asserted against the estate. The
district court permitted the initiation of a formal testacy proceeding but restricted the
personal representative’s investigation of the estate’s assets to those assets that had not
previously been transferred to the decedent’s trust. We conclude that these restrictions were
the result of an improper interpretation of the applicable statute and reverse.

I.      BACKGROUND

{2}     Inderjit Kaur Puri (Wife), the wife of the decedent Harbhajan Singh Khalsa Yogiji
(Decedent), filed a petition seeking the formal probate of her husband’s will and
appointment of a personal representative over four years after Decedent’s death. No
appointment or probate proceeding had been filed in connection with Decedent’s estate
between Decedent’s death and the date of Wife’s petition. The petition stated that it was
brought pursuant to Section 45-3-108(A)(4) “for the limited purpose of confirming title to
the assets of the estate in the successors to the estate.”

{3}      Section 45-3-108(A) prohibits the initiation of a formal testacy or appointment
proceeding more than three years after a decedent’s death unless certain exceptions apply.
In this case, Wife sought to take advantage of Subsection (4)’s exception, which permits a
late filing of a proceeding but prohibits the assertion of claims against the estate other than
claims for administrative expenses. The exception also restricts the personal representative’s
right to possess estate assets. The exception provides:

                A.      No informal probate or appointment proceeding or formal
        testacy or appointment proceeding, other than a proceeding to probate a will
        previously probated at the testator’s domicile or appointment proceedings
        relating to an estate in which there has been a prior appointment, may be
        commenced more than three years after the decedent’s death, except:

                ....

                       (4)     an informal appointment in an intestate proceeding or
        a formal testacy or appointment proceeding may be commenced thereafter if
        no proceeding[] concerning the succession or estate administration has
        occurred within the three-year period after the decedent’s death, but the
        personal representative has no right to possess estate assets as provided in
        [NMSA 1978,] Section 45-3-709 [(1975)] beyond that necessary to confirm

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        title thereto in the successors to the estate and claims other than expenses of
        administration may not be presented against the estate[.]

Section 45-3-108(A)(4). In this Opinion, we refer to this exception as Subsection (4).

{4}     Decedent’s will, which was attached to Wife’s petition, contained three specific
devises of certain of Decedent’s personal property to persons other than Wife and a
provision requiring the residue of Decedent’s estate to be transferred to a trust. The will
recited that Decedent and Wife had “mutually agreed upon a plan of disposition of [their]
assets which is set forth in this [w]ill and the [t]rust described above.” The will also
nominated Shakti Parwha Kaur Khalsa, a devisee under the will, as executor.

{5}     Ms. Khalsa filed objections to Wife’s petition, stating that to the best of her
knowledge, “there are no assets in the estate the title to which can be confirmed” because
all assets had been transferred to the trust and were to be administered by way of the trust.
Ms. Khalsa further objected on the ground that Wife’s petition did not fall within the
exception to the three-year limitation period permitted by Subsection (4).

{6}     The district court held several hearings on Wife’s petition and Ms. Khalsa’s
objections. At the hearings, the parties informed the court about a separate proceeding that
could impact the proceedings in the present case. The separate proceeding was a declaratory
judgment action that Ms. Khalsa and the other trustees of Decedent’s trust had initiated
against Wife before Judge James Hall to determine the validity of claims Wife was asserting
against the trustees. In that case, which we refer to as the trust litigation, Wife filed
counterclaims seeking an accounting and alleging that the trustees had breached their
fiduciary duties.

{7}      At the hearings in the present case, Ms. Khalsa urged the court to deny Wife’s
petition for appointment of a personal representative because the circumstances did not
satisfy the limitations exception in Subsection (4). Ms. Khalsa claimed that there was no
asset in the estate to which title could be confirmed due to the transfer of assets into the trust
upon Decedent’s death. In response, Wife argued that because there had never been a
personal representative appointed, there had never been a determination of what assets
belonged to Decedent at the time of his death in the form of either his separate property or
his half of the community property and, as a result, it was unclear whether Decedent had
improperly disposed of any portion of Wife’s half of the community property. Wife
maintained that all assets were initially controlled by Decedent’s will and that the residual
assets should not have been transferred to the trust until all assets had first been identified.
The problem, according to Wife, was that a personal representative had never been
appointed, and an inventory of assets had never occurred. Consequently, Wife urged the
district court to appoint an independent personal representative to investigate what assets
existed when Decedent died in order to determine what assets belonged to Decedent and
which belonged to Wife.


                                                3
{8}     The district court formally probated Decedent’s will and appointed Christopher
Cullen as personal representative in a supervised administration. Cullen’s appointment was
subject to two prior orders entered by the district court. The first order stated that the
personal representative was to determine “whether any assets were owned by [Decedent] and
[Wife] on [the date of Decedent’s death] other than those previously identified and
distributed by the trustees” of the trust and, “if any such assets exist, to confirm title to those
assets in the successors to [Decedent’s estate].” Wife objected to this provision in the order
because, in her view, the trust may have disposed of assets inappropriately, and the personal
representative should be charged with determining what assets and interests existed at the
time of Decedent’s death, as opposed to what assets were left after distribution by the
trustees.

{9}     The second order was more specific. That order required Wife to identify “all
entities in which [she] believes that Decedent may have, on the date of his death, owned an
interest (legal or equitable), which interest has not been previously identified and distributed
by the trustees.” The order further required the personal representative to make inquiry of
the entities identified and determine whether an entity was a non-profit and, if it was not a
non-profit, determine whether Decedent owned an interest in that entity. If there was
credible information that an entity was a non-profit or that Decedent did not own an interest
in the entity, the order directed the personal representative to report that entity to be a non-
asset. The order required the personal representative to prepare a report of his investigation,
and the parties could file objections to the report.

{10} Following an investigation, the personal representative filed a report and a
supplemental report. He explained at a hearing that several of the entities investigated were
non-profits, some entities were actually products owned by other entities, and one could not
be identified as a separately existing entity. Of the remaining entities, the personal
representative said he could not identify any of them as being entities that Decedent had any
interest in.

{11} At the same hearing, Wife’s counsel stated that while Wife had no objection to the
court’s acceptance of the personal representative’s report, the authority given to the personal
representative was too narrow. Wife maintained that, even if Decedent had no interest in the
entities investigated, there was still a question as to whether the entities had possession of
assets in which Decedent had an interest. Wife argued that the probate proceeding should
be stayed until things had been sorted out in the trust litigation, which would determine the
distribution of identified community property.

{12} In response to Wife’s arguments, Ms. Khalsa asserted that the personal representative
had completed all of the duties ordered by the court, and there was no evidence of any asset
whose title needed to be confirmed. Consequently, it would be appropriate for the court to
close the estate.

{13}    The district court found that the personal representative had acted in accordance with

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the court’s previous orders and that he had “fulfilled the purposes for which this case was
opened pursuant to [Subsection (4)].” The court granted Ms. Khalsa’s motion for a final
order closing the estate. This appeal followed.

II.    DISCUSSION

{14} Wife argues that the district court erroneously concluded that Subsection (4)
prevented the personal representative from investigating what assets were owned by
Decedent at the time of his death, regardless of who was in possession of the assets at that
time. She further maintains that the district court improperly determined that Subsection (4)
precluded the personal representative’s investigation into the propriety of the transfer of
estate assets to the trust. We agree.

{15} The interpretation of Subsection (4) is a matter of law that we review de novo. In re
Estate of Baca, 1999-NMCA-082, ¶ 12, 127 N.M. 535, 984 P.2d 782. “In interpreting
[statutes], we seek to give effect to the Legislature’s intent[.]” Zuni Indian Tribe v.
McKinley Cnty. Bd. of Cnty. Comm’rs, 2013-NMCA-041, ¶ 8, 300 P.3d 133 (internal
quotation marks and citation omitted).

A.     Overview of Subsection (4)

{16} Section 45-3-108 begins with a broad prohibition against the initiation of a probate
or appointment proceeding more than three years after the decedent’s death. It then lists five
exceptions to this prohibition, but we are concerned only with the fourth
exception—Subsection (4)—which states, in relevant part, that “a formal testacy or
appointment proceeding may be commenced” more than three years after the decedent’s
death “if no proceeding[] concerning the succession or estate administration has occurred
within the three-year period after the decedent’s death.” Section 45-3-108(A)(4). The
exception goes on to state, “but the personal representative has no right to possess estate
assets as provided in Section 45-3-709 . . . beyond that necessary to confirm title thereto in
the successors to the estate and claims other than expenses of administration may not be
presented against the estate.” Section 45-3-108(A)(4).

{17} This subsection permits any appointment or formal testacy proceeding to be initiated
more than three years after the decedent’s death with three limitations. First, the
subsection’s exception is not applicable if there has been any other proceeding regarding
succession or estate administration during the three-year period. Second, in proceedings
brought under this exception, no claims other than for the expenses of administration may
be asserted against the estate. Third, the personal representative’s right to possess estate
assets is limited to the possession necessary to confirm title to the assets in the estate’s
successors. This case concerns the second and third limitations.

B.     Second Limitation: Precluding Claims Against the Estate


                                              5
{18} Regarding the second limitation, we are not persuaded by Ms. Khalsa’s argument that
Wife is asserting an improper claim against the estate. Ms. Khalsa maintains that this
alleged “claim” arose from Wife’s argument that unilateral gifts that Decedent may have
made to third parties were possibly taken from Wife’s share of the community property.

{19} Wife argued in the district court that she was not asserting a claim against the estate.
To the contrary, she was asserting that Decedent’s estate could only transfer to the trust those
assets in which he had an interest and that it could not properly transfer to the trust the assets
in which Wife had an interest. On appeal, Wife clarifies that she does not seek to recover
any portion of Decedent’s estate, nor does she want any damages from the estate. Instead,
she wants to identify and confirm title in any asset that represents her share of community
property that should never have been deemed to be part of Decedent’s estate in the first
place.

{20} We conclude that Wife’s desire to identify assets representing her share of
community property is not a “claim” against Decedent’s estate. NMSA 1978, Section 45-1-
201(A)(7) (2011), of the Probate Code defines “claims” as including “liabilities of the
decedent . . . whether arising in contract, in tort or otherwise and liabilities of the estate that
arise at or after the death of the decedent . . ., including funeral expenses and expenses of
administration.” More relevantly, this subsection states, “ ‘Claims’ does not include estate
or inheritance taxes or demands or disputes regarding title of a decedent . . . to specific
assets alleged to be included in the estate[.]” Id. (emphasis added); cf. Houston v. Young,
1980-NMSC-053, ¶ 6, 94 N.M. 308, 610 P.2d 195 (stating that “[a] widow’s one-half
community property interest belongs to her and does not become a part of her deceased
husband’s estate”). Wife’s arguments in this case are disputes regarding Decedent’s title to
the assets alleged to belong to his estate and, therefore, they are not “claims” against the
estate.

C.      Third Limitation: Restriction on Personal Representative’s Right to Possess
        Assets

{21} The third limitation on initiating a proceeding under Subsection (4) states that the
personal representative “has no right to possess estate assets as provided in Section 45-3-
709.” Section 45-3-108(A)(4). Thus, to determine what possessory rights Subsection (4)
removes from the personal representative, we turn to Section 45-3-709, which generally
permits a personal representative to take possession and control of a decedent’s property, to
manage the property, and to initiate actions to recover possession or to determine title. The
statute states:

               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,

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       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.

Section 45-3-709. Although Subsection (4) states that the personal representative does not
have the right to possess estate assets as provided in Section 45-3-709, it also states that the
personal representative may possess estate assets to the extent “necessary to confirm title
thereto in the successors to the estate.” Section 45-3-108(A)(4). This language is the crux
of the present appeal.

D.      Ms. Khalsa’s Arguments

{22} Ms. Khalsa makes two primary arguments in support of her view that this limitation
permitted the district court to restrict the breadth of the personal representative’s
investigation of Decedent’s assets. She maintains (1) that Subsection (4)’s limitation on the
personal representative’s possessory rights prohibited the full-scale investigation of assets
sought by Wife and that this position is supported by In re Estate of Baca; and (2) the district
court properly restricted the personal representative’s investigation to only those assets that
had not already been transferred to the trust because (a) it had the discretion to do so and (b)
allowing a more extensive investigation would thwart Decedent’s estate plan to avoid
probate. We do not agree.

1.      First Argument: Limited Possessory Rights and In re Estate of Baca

{23} First, we see nothing in Subsection (4) that prohibits a personal representative from
performing an investigation to identify with particularity what assets belonged to the
decedent at the time of death. Even if Subsection (4) precludes the management or control
of estate assets, as Ms. Khalsa argues, a personal representative could certainly conduct an
investigation to ensure that only the decedent’s separate property and his or her share of
community property were identified as estate assets, whereupon the personal representative
could confirm title to those assets in the successors identified in the decedent’s will. Such
an investigation would not be inconsistent with the limitations on possession stated in
Subsection (4).

{24} The goal of Subsection (4)’s restriction on the personal representative’s rights of
possession is apparent. In cases such as the present one where no intestacy or formal testacy
proceeding has been initiated within the first three years after a decedent’s death, the
Legislature intended to preclude the personal representative from selling or otherwise

                                               7
exerting possessory control over assets that had been in the possession of others for more
than three years. However, the Legislature wanted to provide a mechanism for a personal
representative to confirm title in an estate’s successors for purposes of establishing the
validity of title. See NMSA 1978, § 45-3-102 (2005) (stating that “to be effective to prove
the transfer of any property . . . , a will must be declared to be valid”).

{25} Ms. Khalsa’s reliance on In re Estate of Baca is also misplaced. That case
interpreted Subsection (4) and stated that “an estate may be settled through inaction and
passage of time” consistent with the Probate Code’s policy “to promote the speedy and
efficient liquidation and distribution of estates, while allowing claimants adequate time to
protect themselves.” 1999-NMCA-082, ¶ 24. This statement is correct in the context of the
circumstances in In re Estate of Baca, which involved a claim asserted against an estate by
a non-devisee seeking enforcement of an alleged oral agreement the decedent entered into
prior to death. See id. ¶ 8-9. The present case does not involve a claim against the estate.1

{26} Furthermore, what Wife seeks—an investigation to identify what assets were
properly in Decedent’s estate—is consistent with another policy of the Probate Code, which
is “to discover and make effective the intent of a decedent in distribution of the decedent’s
property.” NMSA 1978, § 45-1-102(B)(2) (2011). Effectuating Decedent’s intent first
requires identification of the property subject to distribution.

2.     Second Argument: Investigation Limited to Assets Not Transferred to Trust

a.     District Court’s Discretion

{27} We see nothing in Subsection (4) and Ms. Khalsa has not cited any other portion of
the Probate Code that confers discretion on the district court to restrict a personal
representative’s investigation of what assets are properly in the decedent’s estate. Ms.
Khalsa relies solely on Schwartzman v. Schwartzman Packing Co., 1983-NMSC-010, 99
N.M. 436, 659 P.2d 888, for the notion that a probate court may, in its discretion,
circumscribe a personal representative’s investigatory obligations. But Schwartzman is not
helpful. In that case, our Supreme Court interpreted a statute permitting a shareholder to
inspect a corporation’s books and records “ ‘at any reasonable time or times, for any proper
purpose.’ ” Id. ¶ 8 (quoting NMSA 1978, § 53-11-50(B) (1983)). The Court stated that “[a
district] court must of necessity have some discretion in determining when and in what
manner the right of examination should be exercised.” Schwartzman, 1983-NMSC-010, ¶
11.


       1
        We clarify that this Court relied on two cases in In re Estate of Baca that are not
relevant to the interpretation of Subsection (4) because they were decided before that
provision of the Uniform Probate Code was adopted by the Uniform Laws Commission in
1993. Those cases are In re Estate of Taylor, 675 P.2d 944 (Mont. 1984) and In re Estate
of Wood, 710 P.2d 476 (Ariz. Ct. App. 1985).

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{28} The circumstances in Schwartzman are not similar to those in the present case.
Subsection (4) does not contain any language suggesting that there are any limitations, other
than possessory ones, placed on the personal representative when a formal testacy
proceeding is initiated more than three years after the decedent’s death. Therefore, in cases
where Subsection (4) applies, the personal representative would have the same obligations
that are imposed when the personal representative is appointed within the three-year period
following the decedent’s death. Among those obligations is the duty to “prepare an
inventory of property owned by the decedent at the time of his death, listing it with
reasonable detail and indicating as to each listed item its estimated value as of the date of the
decedent’s death.” NMSA 1978, § 45-3-706(A) (1983). In fact, the personal representative
is subject to removal for failure to complete the inventory responsibilities. See NMSA 1978,
§ 45-3-611(B)(6) (1975) (permitting removal of the personal representative for “fail[ure] to
perform any duty pertaining to the office”). Thus, the obligation to inventory estate assets
is not subject to discretionary limitation by the court presiding over the probate.

b.      Unrestricted Investigation Does Not Thwart the Estate Plan

{29} We also conclude that allowing the personal representative to investigate and identify
estate assets, including assets previously transferred to the trust, would not thwart
Decedent’s estate plan. Decedent’s will contained several devises of specific personal
property and then provided that the residue of the estate would pour over into the trust for
distribution consistent with the trust documents. An investigation would allow the personal
representative to identify what assets were Decedent’s separate property or his share of the
community property, and those assets would properly be the subject of the will’s pour-over
provision.

{30} If, following an investigation, the personal representative identified assets previously
transferred to the trust that constituted Wife’s share of community property, the personal
representative could not take possession of those assets given Subsection (4)’s limitations
on the personal representative’s possessory rights. However, the parties appear to agree that
reallocation of community property that was improperly transferred to the trust was the
subject of the trust litigation.

III.    CONCLUSION

{31} We hold that the district court improperly interpreted Subsection (4) as restricting the
personal representative’s duties to investigate and inventory the assets of Decedent’s estate.
On remand, the personal representative may conduct a complete investigation and inventory
of assets in which Decedent had an interest at the time of his death. The personal
representative may confirm title to any assets that are properly in the possession of a devisee,
and he may inventory the assets that were properly identified as residue for transfer to the
trust. Any claim Wife may have for reallocation of improperly transferred community
property was the subject of the trust litigation.


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{32} For the foregoing reasons, we reverse the district court’s judgment and remand for
proceedings consistent with this Opinion.

{33}   IT IS SO ORDERED.

                                           ____________________________________
                                           CYNTHIA A. FRY, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
MICHAEL E. VIGIL, Judge




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