Summary: Probate is a legal process that can be conducted after a death. Its main purpose is to distribute the deceased person’s assets, known collectively as their “estate,” to the rightful parties. It deeply affects many different people, not just the surviving friends and family of the deceased.
The guide covers areas of probate such as its definition, key deadlines, where and how to file, who can serve as the personal representative, the duties of the executor, how to handle an estate that can’t pay all its debts, and much more/
It should be valuable to a wide range of readers, accordingly. It offers helpful information if you are a personal representative, a surviving family member, an heir, or another concerned party. It could also be beneficial if you are a creditor, disinherited claimant, or someone else affected by the outcome of an estate.
Probate deeply affects many different people, not just the surviving friends and family of the deceased.
The estate’s personal representative — commonly known as the executor — handles most of probate’s responsibilities. But they don’t have to go through it alone. Their actions also affect the entire estate, giving others a reason to understand probate, their related rights, and the steps they must follow, according to the law.
This guide should be valuable to a wide range of readers, accordingly. It offers helpful information if you are a personal representative, a surviving family member, an heir, or another concerned party. It could also be beneficial if you are a creditor, disinherited claimant, or someone else affected by the outcome of an estate.
What this guide does not provide is specific guidance or step-by-step instructions for probate procedures. Nothing in it should be construed as legal advice for your particular case. While probate in New Mexico follows a similar process in each county, you are advised to consult with an experienced attorney to understand your legal options and obligations.
If you have any questions about anything you see in this guide — or anything else related to probate — don’t hesitate to reach out to New Mexico Financial & Estate Planning Attorneys. We are a highly experienced firm that can assist you with all probate matters.
Schedule a confidential consultation to speak to a New Mexico probate attorney with no further obligation. Call (505) 503-1637 or contact us online to schedule your no-risk appointment today.
Probate is a legal process that can be conducted after a death. Its main purpose is to distribute the deceased person’s assets — known collectively as their “estate” — to the rightful parties.
A personal representative (also sometimes called an executor) is responsible for handling all probate-related duties. After their appointment is approved by the court, they gain full legal authority to access estate assets, pay off its debts, file paperwork on its behalf, transfer its property to heirs, and conduct other estate-related business.
New Mexico probate courts expect personal representatives to understand their duties. They must follow the law and, if they are self-representing, know how to handle probate procedures on their own.
Court employees are, in fact, not allowed to offer guidance or help estate representatives interpret the law. While this arrangement decreases court administrative costs and speeds up probate, it also puts a lot of pressure on the personal representative to know the “right thing” to do at any given time.
Personal representatives who have legal questions or find themselves handling a complicated estate can consult with a probate attorney in New Mexico for assistance.
They may also wish to hire an attorney if they have to handle more complicated procedures, such as:
Probate is legally required whenever a creditor or heir wants to receive property from an estate. If there aren’t any assets to claim — which can happen after non-probate transfers have taken place (see more below) — then probate isn’t necessary.
Technically, there is no requirement to file for probate. However, property formally held in an estate cannot be claimed or transferred without it.
There’s only one exception: “small estates” with a value of $50,000 or less can transfer property using an alternative process.
For all other situations, probate is necessary. It’s the only way a court will grant the required legal authority.
New Mexico exempts probate for “small estates” (NM Stat § 45-3-1201). With a small estate, someone entitled to receive estate property can transfer it into their own name using an “Affidavit of Successor in Interest.”
A small estate may qualify for this type of transfer if:
Real property cannot be transferred through this process.
If someone is entitled to receive estate property, such as a beneficiary or an heir listed in a will, but no one comes forward to file probate, that property is considered abandoned. The New Mexico Taxation & Revenue Department will hold the property until it is claimed. Claimants must present proof of their identity and justification for being entitled to the property.
There are situations where probate is often skipped. These include scenarios where:
You can determine whether it is in your interests to file probate based on your own judgment and any advice you obtain from a qualified legal professional.
Someone who wants to be appointed as the estate’s personal representative can file for probate in one of two possible courts:
In most cases, probate should be filed in the county or court district where the decedent was domiciled — meaning where they physically lived.
In some cases, you may wish to file for probate in a county where the decedent recorded their legal residence or owned property.
It may be necessary to conduct multiple probate proceedings (known as “ancillary probate”) when the decedent owned property out-of-state. However, these secondary probates can be avoided if the decedent used a non-probate transfer method, such as a transfer-on-death deed, to change the title of the property to someone else.
One bit of good news is that you only have to file for probate once in New Mexico, regardless of how many properties the decedent owned throughout the state.
If you aren’t sure where to file for probate or whether ancillary probate(s) could be needed, consult with a New Mexico probate lawyer for personalized guidance.
Probate cannot be filed until at least 120 hours (5 days) have passed since the decedent’s death.
Probate should be filed within three years of their passing.
Probate can be filed after three years have lapsed under specific circumstances (NM Stat § 45-3-108). Talk to a New Mexico probate lawyer if three years have passed and you believe you have solid reasons to begin probate.
The person who wants to serve as the estate’s personal representative should be the one to file the application to open probate.
Many different parties could be eligible to serve as the PR. They could be someone specifically chosen by the decedent, heirs listed in the will, a surviving spouse, or another interested party.
To be eligible, the person requesting an appointment has to be at least 18 years old and be capable of handling the corresponding duties.
Different individuals can have a higher or lower priority for being appointed as the PR (NM Stat § 45-3-203).
When someone with a lower priority wants to serve as the PR, they first need to obtain the preferred party’s written and signed permission. The person seeking the appointment has to make a reasonable effort to identify these higher-priority parties, contact them, and get them to sign to officially indicate their consent.
Courts prefer to appoint PRs in the following order of priority when a valid will is available:
A PR appointment is given in the following order of priority when no valid will exists:
Someone can petition a district court to formally appoint a PR. The concerned party can also petition to block a PR’s appointment, have them removed, force them to obtain a bond, or have them directly supervised.
In situations where a PR appointment is disputed, a party can request to be the PR, submit that someone else would be an appropriate PR, or ask the court to determine who should be the PR.
Like other formal proceedings, disputing an appointment or otherwise requesting court intervention adds time and expense to probate. You can try to work out an agreement outside of court through negotiation or mediation before filing a formal petition.
Talk to an attorney with experience handling formal probate in New Mexico if you are worried about a PR appointment or feel that you are the best party to be appointed as the PR.
After an individual files an application requesting an informal appointment, the probate court may issue an order to informally probate the will (if one is available) and appoint the applicant as the PR.
The applicant then has to file an Acceptance of Appointment. This officially designates them as the PR until probate is closed.
A PR basically has several different jobs. Some of their most important roles and duties are outlined below.
During probate, PRs have a duty to uphold the interests of the estate itself. This means, to the extent legally and reasonably possible, they are obligated to:
They may also have a general expectation to do any or all of the following, in accordance with their duties:
Perhaps the most important responsibility the PR assumes is that of a “fiduciary.”
In the most basic sense, a fiduciary is someone who formally handles property or money for someone else. The PR has a fiduciary duty to the estate itself, which means they also have a duty to its heirs, by extension. They may also have a duty to creditors and other parties with legitimate claims against the estate.
Fiduciaries have to uphold four basic duties as part of their role:
New Mexico law (NM Stat § 45-3-703) explicitly states:
“A personal representative is under a duty to settle and distribute the estate of a decedent in accordance with the terms of any probated and effective will and the Uniform Probate Code and as expeditiously and efficiently as is consistent with the best interests of the estate.”
In other words, the personal representative’s main goal is to get through probate as fast and efficiently as is reasonably possible, so that heirs can receive their inheritances without unnecessary expense or delay.
Once the PR receives letters testamentary (or letters of administration), they are obligated to proceed without waiting for explicit orders to complete each step of probate (NM Stat § 45-3-704). They can, however, hold off on actions if they feel that legal action could be pending or that they need to seek help from the district court to resolve legal questions.
The PR is obligated to send notice to all heirs to the estate, as well as anyone who has filed a demand for notice within 30 days of their appointment (NM Stat § 45-3-705).
The PR must identify all known property owned by the decedent at the time of their death, along with a reasonable amount of detail, the property’s estimated value, and any debts owed on it or other encumbrance that may apply (NM Stat § 45-3-706).
If an item has a “value of which may be subject to reasonable doubt,” then the PR may employ a “qualified and disinterested” appraiser to assist them with estimating its value (NM Stat § 45-3-707). This provision can apply to real estate and other assets with significant or fluctuating values.
The PR is expected to “take possession or control of” all estate property (NM Stat § 45-3-709). That can mean physically recovering and storing objects, vehicles, or other items of value.
The PR should provide the appropriate level of maintenance and security for the asset in question. For example, objects of limited value that need to be moved from a rental home could be placed in a climate-controlled storage unit. Objects of substantial value, like an exotic vehicle, may demand a greater degree of care and security.
For real property, the PR is expected to secure the property against damage or other impacts to its use or value, to the extent reasonably possible. That may include taking out an insurance policy, implementing security measures, or having the property inspected and repaired.
The PR can also leave property with the individual who is expected to inherit it, unless they determine that its possession is “necessary for purposes of administration.”
The PR must pay the $30,000 family allowance to the surviving spouse or to the surviving dependent children, if there is no spouse (NM Stat § 45-2-402).
In addition, the PR is expected to transfer up to $15,000 in “household furniture, automobiles, furnishings, appliances and personal effects” to the surviving spouse or children of the decedent (NM Stat § 45-2-403).
These payments must be made before any other estate transfers take place.
The PR is expected to pay for all reasonable and necessary expenses from the assets of the estate. These can include:
In addition, the PR is expected to pay for the costs of treating the decedent’s final illness as well as the cost of their funeral and burial, unless other funds were set aside for these purposes.
The PR is expected to identify and evaluate all potential creditor claims against the estate. They may also, at their own discretion, send notice to creditors via mail or published notice.
If a creditor’s claim is valid, the PR must pay it using assets from the estate. If the PR feels that a claim is invalid, they can deny it. The creditor may then petition the district court to order that a payment be made. The PR can defend against this action on behalf of the estate.
The PR is obligated to track all expenses and paid claims. They should assemble this information in an organized and clear manner and provide it to all heirs and devisees of the estate, as well as anyone who filed a demand for notice.
After the family allowance, administrative expenses, and creditor claims are made, the PR can distribute the remainder of the estate’s property according to the provisions of the will.
If there is no will — or there is estate property not transferred in the will or through any other known instrument — then the PR must distribute the applicable estate property through the rules of intestate succession.
The PR is expected to represent the estate in court just as if they were the decedent. They may sue parties or be sued, depending on the circumstances. They may also be asked to justify their actions or defend against orders to block certain actions when performing their duties in the interests of the estate.
A “personal representative” is the catch-all name used by most states when referring to the individual responsible for handling the estate’s affairs.
An “executor” is an older term for the role. It most often applies when the individual serving the estate was formally nominated in the decedent’s will.
For most purposes, “personal representative” and “executor” may be used interchangeably.
Informal probate is the process used to handle most estates.
Formal probate may be necessary, however, when there are disputes or legal questions, especially those concerning the legitimacy of the will.
To briefly summarize the differences:
Informal probate is:
Formal probate is:
The most common reason for formal probate is a will contest. These occur when someone with an interest in the estate (often someone who would benefit as an intestate heir) challenges the will’s legitimacy.
A will can be challenged for several reasons, including:
In addition, someone can petition the district court to resolve a dispute, issue an order, or rule on a legal question. In these cases, the probate process must halt until litigation has concluded.
Examples of matters that may cause a probate case to be heard or tried in a district court include:
It is highly recommended that you consult with an experienced New Mexico formal probate lawyer when issues like these arise — or even could arise. These issues have a high risk of depleting estate assets while delaying the probate process.
Know that you can always reach out to New Mexico Financial & Estate Planning Attorneys for assistance and representation. Early action is often the difference between a matter that is resolved relatively easily and those that tend to drag on and balloon in cost.
When probate can proceed without will contests or other delays, it uses the following steps:
Closing probate ends the process, and it also terminates the PR’s authority. Accordingly, the PR should only close probate when they are confident that all creditor claims and other lingering issues have been resolved.
When they submit their verified statement to close probate, the PR asserts that all of the following is true:
The PR may wish to delay closing probate when:
If the PR closes probate too early, they could face legal action. They may even be pursued as personally liable if their actions constitute negligence or intentional misconduct.
Accordingly, it may be advisable to consult with a probate lawyer in New Mexico before closing probate altogether. This is especially the case when any of the above may be true.
If you ever have questions about closing probate or want to conduct a thorough review before doing so, don’t hesitate to reach out to New Mexico Financial & Estate Planning Attorneys.
Probate isn’t the only way to handle transfers of property. If the decedent made preparations prior to their death, then certain transfers can happen without the need for the property to go through probate.
These non-probate types of transfers can include:
A trustee is responsible for making distributions to beneficiaries from a living trust, according to the terms set by the trust’s creator. They should make these distributions automatically and notify the beneficiary parties, especially if the transfers are supposed to occur immediately after the original property owner’s death.
In every other case, the named beneficiary or recipient of the transfer is typically considered responsible for coming forward to receive their assets. They may be notified by the appropriate financial institution, but it is often expected that they come forward with a death certificate and other needed proof before they can claim their assets.
Many non-probate transfers are still subject to possible creditor claims. This is most often the case when the estate otherwise lacked the funds to completely pay off its debts.
Life insurance proceeds and retirement account beneficiary transfers are largely exempt from these claims. However, other asset transfers may be subject to them.
Consult with a probate attorney in New Mexico if you are a PR or beneficiary who is worried about having claims against non-probate assets.
It may be possible that the decedent took measures to completely (or nearly completely) remove assets from their probated estate. In these cases, the estate may be eligible to skip probate entirely — in the case of no assets — or transfer any remaining non-real property through a small estate transfer.
You may want to verify that other assets aren’t included in the probated estate, however. You also want to confirm that the estate was able to fully repay its debts to remove the chance of a creditor claim on non-probate assets. Refer to a New Mexico probate attorney if you require verification, guidance, or representation to fully confirm.
All debts owed by the decedent at the time of their death become the estate’s debts. These can include:
The PR is responsible for paying all unpaid claims they determine are valid. Ideally, the decedent will have set aside liquid funds for this purpose.
However, it is possible that the decedent failed to make these preparations. In these cases, the PR must tap other funds or even sell estate property to pay off its bills.
Note, too, that these claims must be paid — in order of priority — before any transfers to heirs can be made. On the other hand, the family allowance and estate administration costs must be paid first, according to probate procedure. Therefore, it may be possible for the estate to run out of money before it can fully pay off all of its debts.
Insolvent estates are more common than one might think. Many times, people incur significant debts right before the end of their lives. This scenario is especially common for older adults who require long-term nursing care.
The PR should be prepared for a situation in which they might be unable to pay off all of the estate’s debts. When this occurs, they must first attempt to pay back debts and expenses that rank higher on the following order of priority:
A creditor cannot be shown preference compared to others in the same (or a lower) level of priority. Instead, the PR typically must attempt to distribute available funds in proportion to the total size of debt.
When an estate shows a clear risk of insolvency, it is much more likely that it will face adversarial creditor claims and attempts to seize its property. To determine the best way to proceed — including how to prioritize expenses and claims — you can refer to a New Mexico probate attorney.
An estate may owe income taxes if the decedent earned income during their last year alive. They may also owe property taxes, sales taxes, capital gains taxes, and other back taxes.
If the decedent’s gross estate could be valued in excess of $15 million at the time of their death, they may also owe estate taxes.
Refer to a New Mexico probate attorney if you need help understanding what taxes might be owed and what options the estate might have to mitigate them.
The decedent may leave language in their will requiring the PR to create a testamentary trust. The will may contain the complete trust agreement or refer to a trust instrument where the agreement is spelled out in detail.
The PR must carefully read the trust’s language and formational instructions to understand:
All assets must be re-titled or otherwise transferred into the name of the trustee, noting that they are being held in care of the trust. Some assets can be trickier than others to retitle, so refer to a New Mexico probate lawyer for assistance if you have questions or require assistance.
The decedent should have included language in their will nominating an individual to serve as the minor’s guardian.
If they didn’t, then a qualified person can step up to take temporary care of the minor. This person can then submit to be the child’s “kinship guardian” after 90 days have passed. They can also petition the court to be named as the child’s full legal guardian.
If the child is 14 years or older, they can also have a say in who is appointed as their guardian.
The court will consider all appointments of guardianship carefully, even when the proposed guardian was nominated by the child’s original parents.
The PR may need to be present during certain hearings and procedures, especially if they are tasked with presenting the will or providing additional documentation left to them by the decedent. They may also need to attest for — or against — a nominated guardian’s appropriateness, based on their understanding of the situation and the deceased parent’s estate plan.
Of course, the PR may also become the minor’s guardian if they have been nominated by the decedent or are otherwise deemed as an appropriate caretaker by the court.
Unemancipated minors cannot receive gifts of estate property. Instead, the assets must be transferred to a custodian (NM Stat § 46-7-16). The custodian is responsible for maintaining the value of the assets, minus reasonable expenses, while dispensing them for the benefit of the child, as is necessary.
During estate planning, a parent (or other person wishing to gift assets to a minor through their will) can decide who they would like to be the custodian. Alternatively, they can make arrangements to have the gifted assets transferred to a living or testamentary trust. The trustee then acts as custodian of the assets until the child is eligible to receive them.
The following are some of the most important dates and deadlines to be aware of as a PR, a creditor, or another party with an interest in the estate.
| Event Type | Time Limit |
| Eligibility to file for probate | Minimum of 120 hours (5 days) from the date of the decedent’s death. |
| Eligibility to receive an inheritance | Must survive the decedent by a minimum of 120 hours (5 days) |
| Time limit to file informal probate | 3 years from the date of the decedent’s death. |
| Requirement to file notice of appointment as personal representative | 30 days from the date of the appointment |
| Requirement to complete an estate asset inventory and evaluation | 90 days (3 months) from the date of the appointment |
| Limit for creditor claims without receiving notice | 1 year from the date of the decedent’s death |
| Limit for creditor claims after a published notice | 120 days (4 months) after receiving notice |
| Limit for creditor claims after receiving mailed notice | 60 days (2 months) after receiving notice |
| Contest a will | 120 days (4 months) from the date probate originally began |
| Other claims against an estate (including torts) for actions taking place after the decedent’s death | 120 days (4 months) from the date probate originally began |
| Petitioning to be a PR as a creditor | 45 days from the date of the decedent’s death |
| Filing a small estate Affidavit of Successor in Interest | 30 days from the date of the decedent’s death |
There may be other key deadlines to be aware of. Be sure to refer to a New Mexico probate lawyer for guidance and advice if you want to remain on top of important time limits.
At New Mexico Financial & Estate Planning Attorneys, our team has decades of collective legal experience handling probate cases, disputed claims, contested probate, and other estate-related procedures. We know that now is probably a sensitive time for you and the people who were close to the decedent. Unfortunately, probate can also be highly time-sensitive.
Keeping up with all of your obligations can get overwhelming — especially if there are legal questions, concerns, or contests to contend with. Whether you’re dealing with adversarial litigation or just want to do what’s best for your loved ones, we’re here to support you through the entire process.
Get in touch with our experienced attorneys to obtain the partner, confidant, and legal advocate you need to get through what is naturally a difficult time. Reach out to our knowledgeable probate attorneys in New Mexico by calling (505) 503-1637 or contacting us online to schedule a no-obligation case review.
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