Overview
This page is about probate, governed by the New Mexico Uniform Probate Code, found in Chapter 45, Section 45-1-101 of NMSA 1978.
Since there are other laws governing probate, you should talk to a lawyer to ensure that this is the correct procedure for your situation.
What is Probate?
Probate is the legal process through which a court grants a person legal authority to handle the legal affairs of a deceased person. The person who has died is called the “decedent.”
When is Probate necessary?
Probate is necessary when a person dies, leaving property titled in their name (real estate, bank accounts, vehicles, stocks and bonds, etc.) This property is called the “decedent’s estate.”
When is Probate NOT necessary?
Probate is not necessary to transfer property that is not “titled,” such as personal items including furniture, jewelry, artwork, and other personal effects.
Probate is not necessary if the decedent has arranged for a non-probate transfer of titled property. Examples of non-probate transfers are: real estate held as Joint Tenants, real estate with a recorded Transfer on Death Deed, bank accounts with Payable on Death designations, brokerage accounts with death beneficiary designations, etc.
Where and when do I file a probate case?
If probate is necessary, the probate case must be filed with the probate court in the county where the decedent was domiciled (physically living) at the time of their death.
Probate courts are designed to help non-lawyers with probate cases that do not need to be filed in district court. The current cost to file probate in probate court is $30. Probate can be filed any time between 5 days and 3 years after the decedent’s death.
In some cases, it may be necessary to file the probate case in the district court. The probate court will inform you if this is necessary. If this is the case, consider consulting an attorney. That situation is beyond the scope of this guide.
Filing a Probate case with a Will
People who die without a will are said to have died “intestate.” New Mexico has specific “Intestacy Laws” that detail who can be appointed PR of the estate, who is entitled to the decedent’s property, and the share of the property each person receives.
A spouse has the highest priority for being appointed PR, followed by the decedent’s children. A person who wishes to be appointed PR must have the written consent of all other people with the same or higher priority for appointment.
Instructions for filing a probate case without a will are contained in probate Forms 4B-011 and 4B-012 NMRA.
Non-Probate Transfers
Property you own that is held in the following ways passes to your beneficiaries without a will and is not transferred through probate.
- Real estate or other assets held in Joint Tenancy with Right of Survivorship pass directly to the other joint owner.
- A Transfer on Death Deed transfers title to a house or piece of land upon your death. This is a special deed that you can revoke or amend at any time without the beneficiary’s consent or knowledge.
- Assets, such as bank accounts, may be held in Payable on Death (POD) accounts. Upon the owner’s death, this type of account is paid to the named beneficiary upon presentation of a copy of the death certificate to the bank or credit union.
- Securities, such as stocks and bonds, may be held in Transfer on Death (TOD) accounts. The transfer is carried out when the named beneficiary presents a copy of the death certificate to the company issuing the stock. The company will provide any other forms needed to make the transfer to the beneficiary.
- Life insurance policies and annuities pay money directly to the named beneficiary without a will or probate.
Other ways to transfer assets without probate:
- Affidavit of Successor in Interest (estates under $50,000): If the total amount of your estate is less than $50,000, and at least 30 days have passed since your death, if no one has applied to be appointed Personal Representative of the estate, a person entitled to your property can collect it by presenting a sworn statement or affidavit to the person holding the property. This process can be used to transfer titles to motor vehicles with a form from the Motor Vehicle Department.
- Transfer of title to homestead to surviving spouse by affidavit: If a home is titled only in the deceased spouse’s name, the surviving spouse may be able to transfer title to the community property home to themselves. This is done through an affidavit, which is filed six months after the spouse’s death.
Duties of the Personal Representative
When the probate court appoints a person to be the Personal Representative of the decedent’s estate, the court gives the PR a document called “Letters Testamentary.” If the decedent died without a will (intestate), the document is called “Letters of Administration.” This document gives the PR the legal authority to transact business on the decedent’s behalf.
The PR is responsible for:
- Notifying all of the heirs of the decedent’s estate;
- Gathering and inventorying the decedent’s assets;
- Identifying and paying the decedent’s debts to the extent that funds are available in the estate to do so;
- Distributing the decedent’s assets in accordance with the decedent’s will or the intestacy laws if there is no will; and
- Closing the probate case by filing a sworn statement with the court stating that the PR’s duties are completed. The probate case must remain open for at least 3 months before it can be closed.
The PR is not allowed to use funds from the estate for the PR’s personal benefit. But the PR is entitled to fair compensation from the estate for the time spent administering the estate. The PR should keep a written record of tasks performed and time spent. The PR may also use estate funds to pay for estate administration costs (e.g., postage, filing fees, copies, etc.).
To learn more, please refer to Section 45-3-103 and Section 45-3-719 NMSA 1978.
Testate (Will) Probate Checklist
This checklist will help you take the proper steps to begin the probate process.
Step 1: Opening the case: Identify the following:
- Identify Devisees;
- Identify Heirs;
- Identify the county and choose whether to file in Probate Court or District Court. If the decedent died more than three years ago or the original will cannot be located, the case must be filed in District Court; and
- Check for demand for notice in the District Court.
Step 2: Fill out and file the forms. Complete and file the following forms:
- File an Application to Probate Will and Appoint Personal Representative
- Obtain an order to Informally Probate Will and Appoint PR; file an Acceptance of Appointment and have a clerk issue Letters Testamentary.
Step 3: Serve your court papers.
- Within 30 days of the appointment, send Notice of Appointment, the Order, and a copy of the Will to Devisees, Heirs, and any person who has filed a demand for notice.
- Decide whether to notify creditors. If creditors will be notified, you must either send notice or publish notice.
Step 4: Preparing the estate.
- Collect/Inventory Assets of the Decedent, Value Assets (within 3 months of appointment), and determine the debts of the decedent. Inventory does not have to be filed with the court.
- Pay the family allowance ($30,000) and personal property allowance ($15,000) if required.
- Pay costs and expenses of administration.
- Pay creditors or dispute claims.
- Prepare an Accounting of Administration, which does not have to be filed with the court, send the Accounting to Devisees and those who filed a demand for notice, and distribute the remaining assets to the devisees.
Step 5: Close the case.
- Close probate and estate when you meet the requirements in the Verified Statement.
Testate (No Will) Probate Checklist
This checklist will help you take the proper steps to begin the probate process.
Step 1: Opening the case: Identify the following:
- Identify Devisees;
- Identify Heirs;
- Identify the county and choose whether to file in Probate Court or District Court. If the decedent died more than three years ago or the original will cannot be located, the case must be filed in District Court; and
- Check for demand for notice in the District Court.
Step 2: Fill out and file the forms. Complete and file the following forms:
- File an Application to Appoint Personal Representative
- Obtain an order to appoint PR informally; file an Acceptance of Appointment and have a clerk issue Letters of Administration.
Step 3: Serve your court papers.
- Within 30 days of the appointment, send the Notice of Appointment and Order to the heroes and to any person who has filed a demand for notice. Decide whether to notify creditors. If creditors will be notified, you must either send notice or publish notice.
Step 4: Preparing the estate.
- Collect/Inventory Assets of the Decedent, Value Assets (within 3 months of appointment), and determine the debts of the decedent. Inventory does not have to be filed with the court.
- Pay the family allowance ($30,000) and personal property allowance ($15,000) if required.
- Pay costs and expenses of administration.
- Pay creditors or dispute claims.
- Prepare an Accounting of Administration, which does not have to be filed with the court, send the Accounting to Devisees and those who filed a demand for notice, and distribute the remaining assets to the devisees.
Step 5: Close the case.
- Close probate and estate when you meet the requirements in the Verified Statement.
Frequently Asked Questions (FAQ)
The decedent’s primary residence can be transferred to the decedent’s surviving spouse without probate by using an “Affidavit of Surviving Spouse” if:
- At least 6 months have passed since the decedent’s death; and
- No probate has been filed; and
- The only item required to be transferred from the decedent’s estate is the decedent’s primary residence; and
- The decedent and spouse owned the residence as community property, or the decedent willingly left their interest in the residence to the spouse; and
- The full value of the residence, as assessed for property tax purposes, does not exceed $500,000.
The affidavit must be signed by the surviving spouse and notarized. The affidavit is then filed with the county clerk in the county in which the residence is located. Check with your local probate court to find out where to get the forms and instructions to create an Affidavit of Surviving Spouse.
If your heirs or beneficiaries can obtain ownership of your property through a non-probate transfer, your estate will not have to go through probate. There will usually be no need for probate if you arranged for the title to your property to be transferred by other means. If you own property that has a “title”, such as automobiles, real estate, bank accounts, or stocks and bonds, these assets may not require a probate proceeding. The way your property is titled determines whether it will need to go through probate. Also, if the only property you own when you die consists of personal items such as furniture, appliances, and clothing, your estate may not require probate.
The best way to achieve the same result would be to hold the account in a “payable on death” (POD) trust for the children. Then every child automatically receives their share. (Note: putting a child’s name on your account makes that child a joint owner of the money while you are alive and could make the money in the account available to your child’s creditors.)
A “small estate” is defined as one where the decedent’s total estate is worth less than $50,000 and does not include any real property (land, a house, a farm, etc). For more information, please see Section 45-3-1201 NMSA 1978.
If the decedent’s estate qualifies as a small estate, the decedent’s property can be distributed without probate by using an “Affidavit of Successor in Interest” if:
At least 30 days have passed since the decedent’s death; and
No probate has been filed.
The affidavit can be presented to banks to collect the decedent’s money and other institutions, such as the Motor Vehicle Division, to change title to the decedent’s vehicles.
The affidavit must be signed by the person entitled to receive the decedent’s property and notarized.
Check with your local Probate Court to find out where to get the forms and instructions to create an Affidavit of Successor in Interest.
While both methods allow your home to pass to your child without probate, there are potential problems you should consider before changing the title. Once the title to the house is in your child’s name (either as sole owner or joint tenant), the house becomes an asset that may be available to your child’s creditors. If you transfer title to someone else, you lose control over what will happen to the property while you are alive. This can also affect your ability to qualify for Medicaid for nursing home care. The better solution would be to execute and record a Transfer on Death Deed. An owner of real estate located in New Mexico may execute a deed designating a beneficiary who will become the owner of the property upon the owner’s death. This deed can be revoked at any time before the owner’s death and does not confer any ownership rights on the beneficiary until the owner has died. When the owner dies, the beneficiary files a copy of the death certificate with the county clerk in the county where the real estate is located, and title passes to the beneficiary without going through probate. Another advantage of this type of deed is that the beneficiary receives a stepped-up tax basis in the property equal to its value at the date of death. This means the beneficiary won’t have to pay capital gains taxes on the amount the property increased in value while the original owner owned it.
If no one contests the will and there are no property issues to resolve, probate can often be completed in four to six months. There is no specific probate cost beyond the filing fees. Depending on how complicated the probate proceeding may be, the cost could range from a few hundred dollars to several thousand dollars if you hire a lawyer to help.
An important part of the probate process is paying valid debts owed to creditors. Your Personal Representative will be responsible for notifying your creditors about your death and asking those creditors to submit their bills. If your estate does not have enough money to pay the debts, creditors may charge them off. Your Personal Representative does not use their own funds to pay your bills.
A living trust is an estate planning tool that allows you to transfer your assets directly to your beneficiaries without the property going through probate. Probate is a legal process used to pass title to property that has not already been transferred by some other method, such as a living trust or joint tenancy with right of survivorship.
There are some basic terms to know if you are considering a living trust. As the owner of the assets to be transferred, you would be the one creating the trust and would be referred to as the “trustor, “” grantor, or “settlor.” You would appoint a “trustee,” who is responsible for managing and distributing your assets. The “beneficiaries” of the trust are the people who receive the distributed assets. You should choose the trustee carefully, as this person will have a duty to manage and distribute the trust’s assets strictly for the beneficiaries’ benefit.
Although a living trust and a will are both estate planning tools, they differ significantly in probate. A living trust becomes effective as soon as it is properly executed and funded. It is usually effective in avoiding probate. A quill does not become effective until your death and may require a probate proceeding. Any assets that you neglect to place in the trust may still have to be probated in order to either place them in your trust or transfer them to your heirs.
Two things that should be considered are:
- A living trust is generally a very expensive estate planning document, and
- Most living trusts are lengthy documents written in language that may not be understandable to someone who is not a trust attorney.
That means if you have questions about your trust or the property it owns, you will likely have to go back to the trust attorney for answers.
Even without a living trust, there are ways to avoid having your estate probated. Other methods of transferring property include “joint tenancy with right of survivorship”, payable-on-death accounts, transfer-on-death accounts, and transfer-on-death deeds. As of June 2001, the transfer-on-death deeds became available as an option in New Mexico. However, the New Mexico transfer-on-death deed can only be used to transfer real estate located in New Mexico.
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Last updated: 7/28/2026
