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LegalGems
LegalGems, Attorney
Category: Estate Law
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Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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This is a probate question. The decedent died in New Mexico

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This is a probate question. The decedent died in New Mexico and her assets are located in New Mexico. The executor is located in Colorado. There is a will and it is being contested. Can the probate process be moved to Colorado?

LegalGems :

Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! I'm sorry to hear of your recent loss. Unfortunately, the will needs to be probated in the state where the decedent resided right before her passing. If there is any real property in any other states, an ancillary probate proceeding needs to be initiated in that state, to deal with the real property in that state. The executor can defer the position, in which case the successor executor would step up. If there is no successor, or that person denies the position, an interested party can petition for the position.

Customer:

Depositions need to be taken for the will contest. If the person being asked to depose is located in another state can that person request that the deposition be taken in their home state? Can a person refuse to be deposed?

LegalGems :

Generally there are provisions for out of state deponents. Let me verify what exactly they are. And a person cannot arbitrarily refuse to be deposed; they need to have a valid reason.

LegalGems :

Here is information on issuing subpoenas according to the Uniform Interstate Deposition and Discovery Act: http://www.nals.org/?p=1621 It sets forth the rules for out of state depositions (and discovery in general).

LegalGems :

Here is a walk through explanation of the process, issued by the Utah bar, but applicable in all states: http://utahbar.org/barjournal2000/html/january_february_2001_2.html

LegalGems :

If the party refuses to take the depo, then that is considered contempt of court, and the person can be liable for attorney fees and costs incurred as a result of such refusal.

Customer:

What if the person simply answers most questions with I don't know or I can't remember

LegalGems :

A judge would need to review the transcript and if it appears that it is a willful refusal, then the court will order the person to answer the questions; if they continue to refuse, then they have the power to hold the person in contempt. With issues such as this it depends on the judge's take on the issue- whether the judge believes the refusal in willful. And if it is, a judge generally does not have much patience with a person that is obstructing the legal process via the discovery tools, because it is a waste of the court's time. So they tend to be quite liberal in sanctioning the other party and ordering attorney fees/costs.

Customer:

Thanks.

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