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Intestate succession in New Mexico refers to a situation where the state decides who will inherit property based on existing laws. Simply put: if someone dies, and they do not provide a legitimate will, then their estate will transfer to the next person in the line of intestate succession. Property not mentioned in the will may also pass to the next heir, according to intestate succession rules.

Since most individuals would like to see their property divided amongst friends, family, and other beneficiaries in the event of their death, intestate succession should be seen as a consequence of poor estate planning. Everyone leaves something behind when they die, and if they don’t want the court to give the entirety of it to one individual or a handful of individuals, then they have a responsibility to draft a will and engage in estate planning.

Knowing about intestate succession is also a key component of understanding estate law and how to form a legal strategy in the event of your death. Certain assets do not apply to intestate succession rules, for instance, such as accounts transferable upon death, property held in trust, or life insurance benefits.

Work with an intestate succession attorney familiar with New Mexico law to seek the ideal outcome in the event of your death. New Mexico Financial & Family Law can be here for you to assist with planning, drafting the necessary documents, and understanding how the law might affect your intended wishes. We can also provide assistance to families struggling to understand inheritance and intestate succession laws.

Reach out to us at any time to schedule a no-obligation consultation with an intestate succession lawyer near you. Call (505) 503-1637 or contact us online to schedule your appointment now.

What is intestate succession, and when does it apply?

The word “intestate” means that someone died without having a last will and testament, otherwise known as a will.

Without any legal document describing the decedent’s wishes to guide them, the courts will grant property to the surviving heir at the top of the line in intestate succession. This typically means the spouse, who will inherit everything unless there is a will or other legal document specifying otherwise. If there is no spouse but surviving children, they will split the inheritance evenly. There are also other family members who could inherit if there are no surviving children; you can see more about who is in line for intestate succession in New Mexico below.

Note that intestate succession may occur if there is a will but it fails to meet the minimum requirements for validity. In order for a will to be valid in the state of New Mexico, it must meet the following criteria:

  • The testator (person drafting their will) must be at least 18 years of age
  • The testator must be of sound mind
  • The document must be signed by the testator, or it may be signed by someone else in their conscious presence, according to their direction
  • There must be at least two witnesses to the signing of the will, and these witnesses must also apply their signature
  • The will must exist in a written form
  • New Mexico does not have limitations on beneficiaries

If a will fails to mention certain property and there is a legal question of who should inherit it, then the state will typically go by the rules of intestate succession to grant this property to the next surviving heir.

Who inherits, according to New Mexico’s rules for intestate succession?

When there is no will, New Mexico distributes a decedent’s property based on heirship:

  • Surviving spouse and children — In this situation, the spouse receives all communal property and a quarter of the decedent’s separate property. The remaining separate property is split among surviving children.
  • Surviving spouse and no children — Everything goes to the spouse.
  • Surviving children and no spouse — The children receive everything.
  • Parents and no children or spouse — Everything goes to the parents
  • Siblings and no spouse, children, or parents — The siblings inherit everything.

Under New Mexico’s survivorship period, a person must be alive 120 hours longer than you to be eligible to inherit your estate.

Property exempt from intestate succession

Any property that is not considered part of the decedent’s estate or that lies outside of the legal powers of the will is not affected by intestate succession rules.

Common examples include:

  • Property transferred to a living trust
  • Payable-on-death bank accounts
  • Transfer-on-death account securities
  • Real estate held by transfer-on-death deed
  • Life insurance proceeds (go to named beneficiaries)
  • IRA, 401(k), or other retirement account funds
  • Property owned with the decedent through joint tenancy

A will can exclude people from intestate succession

In some situations, a will may name someone who is ineligible to receive property through intestate succession. This may seem unusual, but it is technically possible for a will to not name any beneficiaries and to instead simply name people who are excluded from inheriting their property. A more likely scenario is that, in the event, the wishes of the will cannot be carried out, the property described would go to the next heir according to intestate succession. For example, if someone was named as the beneficiary for a car the decedent owned, but that beneficiary is dead, then the car would normally be transferred according to intestate succession rules.

How to avoid intestate succession

If you have intentions as to how your property should be distributed when you die — as most of us do — then the best course is to draft a legitimate will. Remember that any time you wish to change the will, you must do so by creating an amendment to the will, known as a codicil. This document must be signed, witnessed, and executing according to the same legal rules as a valid will.

Trust formation is another option for avoiding intestate succession. Any property held in a living trust will be distributed to the named beneficiary or beneficiaries upon your death. This arrangement allows you to avoid having these assets go through a probate proceeding. It also allows you to create certain rules for distribution, such as setting aside money for grandchildren who have yet to be born.

If you are a family member of someone who recently died, and the probate court is saying that there is not a valid will, then you must be able to assert some sort of claim or ownership to a specific property. Otherwise, all property contained in the decedent’s estate will pass to their surviving heirs according to intestate succession rules. In this situation, it is important to speak to a New Mexico intestate succession lawyer as soon as possible in order to explore your available legal options.

Work with experienced intestate succession attorneys in New Mexico

Whether you have questions about intestate succession or are trying to avoid it, New Mexico Financial & Family Law is available for legal counsel. We have decades of experience assisting individuals with aspects of estate planning, and we have represented family members, estates, and trusts during legal proceedings of all types. 

Let us help you achieve your goals and attain a better understanding of New Mexico inheritance and estate planning laws. Schedule your no-obligation consultation appointment when you call (505) 503-1637 or contact us online. 

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