Small Estate Affidavit in New Mexico

Quick Summary: Small Estate Affidavit in New Mexico

• Surviving loved ones can claim assets through a small estate affidavit transfer 30 days after a death if probate has not been filed.
• Qualifying New Mexico estates must have a total value of less than $50,000, and the affidavit may only be used to obtain tangible personal property or payment on instruments.
• The person using the affidavit must be the successor entitled to the property.
• Non-probate assets, including trusts, do not count towards the calculated size of the estate.

Need immediate help? Contact New Mexico Financial & Estate Planning Attorneys.

After a death, certain estates with a minimal value may qualify for a special type of probate exemption. Instead of going through probate procedures, a survivor of the decedent can petition to transfer the remaining contents of the estate through a small estate affidavit process in New Mexico.

Because many of an estate’s most valuable assets can be transferred outside of probate, small estate settlement procedures are quite common. In New Mexico, the small estate threshold is under $50,000. This calculation does not include transfers that avoid probate, such as life insurance proceeds, retirement accounts with a named beneficiary, and assets held in a living trust.

Settling a loved one’s final affairs through a small estate affidavit happens either after someone has completed careful estate planning or had minimal assets (ones unencumbered by liens) to begin with. However, the process may not be available in all cases, especially if there are creditor claim disputes or other estate-related issues that may need to be resolved through formal probate.

Attorney Don Harris and the team at New Mexico Financial & Estate Planning Attorneys are ready to assist you with planning for a small estate settlement or going through the process as a survivor. Call us at (505) 503-1637 or contact us online to schedule a confidential, no-obligation appointment and speak with our experienced probate and estate planning attorneys.

What Are the NM Small Estate Affidavit Requirements?

In order to qualify for a transfer using the small estate affidavit process in New Mexico, the estate must meet the following criteria:

• 30 days or more have passed since the death of the decedent.
• No one has come forward to request an assignment as the estate’s personal representative (i.e., probate has not been filed).
• The total value of the estate, which could be subject to probate, is less than $50,000. 
• The affidavit may only be used to collect tangible personal property or a debt.
• The person using the affidavit is entitled to the money or property.

If all of these criteria are met, an individual who would be entitled to receive the property (e.g., a surviving spouse, next-of-kin, or sole heir) can complete New Mexico’s Affidavit of Successor in Interest form.

This form must be signed by the intended primary heir, and they must have it notarized.

Once completed, the affidavit can be presented to banking institutions, individuals, or professional organizations to claim assets. The person holding the assets may transfer the property to the successor without having to open probate.

Transferring a Primary Residence to a Surviving Spouse

A similar affidavit-based process can be used to transfer a primary residence to a surviving spouse if all of the following criteria have been met (NM Stat § 45-3-1205):

• At least six months have passed since the death of the decedent.
• Probate has not been filed.
• The tax-assessed value of the home is $500,000 or less.
• The spouse jointly owned the home with the decedent as community property, or the decedent left their interest in the home to their spouse in a will.
• The home is the only asset being transferred from the estate, not counting assets handled through non-probate transfers (including an affidavit of successor in interest).

If their situation meets these criteria, they can complete an “Affidavit of Surviving Spouse” and file it with the county clerk’s office where the property is located.

However, the probate code provides that if there is no will, the surviving spouse automatically receives all community property as a matter of law (NM Stat § 45-2-102(B)). In many cases, if the only property owned by the spouses is community property, and one spouse dies without a will, the surviving spouse may not have to do anything. Reach out to an attorney if you have questions.

Benefits of Qualifying for the Small Estate Affidavit

Probate can involve lengthy procedures, including the need to notify creditors, perform an inventory of the estate, and manage other aspects of New Mexico estate administration.

Using an affidavit of successor in interest bypasses this process, greatly speeding up the time it takes for heirs to secure their assets. Avoiding probate in New Mexico can also save heirs considerable expense, in some cases.

When Filing a Small Estate Affidavit May Be Unwise Or Impossible

Filing a small estate affidavit in New Mexico may not be possible for certain estates. The small estate affidavit may only be used by a successor entitled to certain tangible personal property or an instrument evidencing an obligation. It cannot be used for real property.

Further, there may be a conflict between certain creditor claims, the family allowance, and the claim of the successor of the personal property. The person claiming to be a successor must ensure that his entitlement to the personal property is not subject to competing claims. 

If any property is disputed, the will is contested, or there are any other forms of litigation requiring formal probate, then a small estate transfer may not be available.

If you think any of the above may apply to your loved one’s estate, or you are currently facing adversarial legal action in connection with the estate, do not hesitate to reach out to a New Mexico formal probate lawyer.

Don Harris, senior attorney at New Mexico Financial & Estate Planning Attorneys, is certified in creditors’ rights by the American Board of Certification. His experience helping families with estate claims can benefit surviving loved ones sitting on the other side of the situation. Call our offices to schedule an appointment, get answers to your questions, and determine the best path forward for your loved one’s estate.

What Property Counts Towards the Value of a Probated Estate?

When trying to determine if your situation qualifies for an affidavit transfer under the New Mexico small estate threshold, it’s important to understand what gets counted as part of a probate-able estate.

A decedent’s estate includes all of the assets they physically possessed, their account balances, and any property titled in their name. However, the following are excluded from their probated estate:

• Banking and investment accounts with a transfer-on-death (TOD) or payable-on-death (POD) beneficiary
• Retirement accounts with a named beneficiary
• Real property titled with a transfer-on-death (TOD) or joint tenancy with rights of survivorship (JTWROS) deed
• Half of the community property held jointly with a spouse at the time of the decedent’s death (when the will doesn’t seek to provide another disposition with the decedent’s half of the community property)
• Life insurance policy benefits
• Property transferred into a living trust prior to the decedent’s death

With proper estate planning, it is possible to collect these assets without probate in New Mexico, leaving a relatively small pool of assets, or often nothing, remaining to be managed through probate.

Creditor Claims Can Prevent a Small Estate Transfer

Recognize that creditors could be entitled to this property transferred through New Mexico’s probate alternatives if the probated remains of the estate aren’t enough to settle its debts. Creditors must be paid according to their proportion owed from the decedent’s total debts, until no assets remain.

However, creditors must take action within one year of the death of their debtor or else their right to collect is forever extinguished.  If no probate is opened by an heir or other interested party within one year, the creditor must open a probate to collect its debt, which is not common.  One common tactic that heirs use to avoid paying creditors is to wait at least one year after their loved one dies to open a probate. Then, no creditors (with certain exceptions such as liens and taxes) have to be paid. 

Representatives of the estate are also required to furnish a $30,000 family allowance and $15,000 personal property allowance from the estate to the surviving spouse or minor/dependent children of the decedent if they were not otherwise taken care of in the will. These payments take priority over other estate expenses and creditor claims.

Speak to an experienced probate lawyer in New Mexico to understand what options you have, what strategies can be used when an estate has limited funds, and what you are legally obligated to pay, according to the state’s version of the Uniform Probate Code.

Small Estate Affidavit vs. Informal Probate in NM

Estates that don’t qualify for a small estate affidavit may still be able to take advantage of New Mexico’s expedited probate procedures. 

Also known as “simple probate,” “informal probate,” or “unsupervised probate,” this process must follow all the steps required for probate in New Mexico. However, the personal representative can continue with each step without waiting for permission or orders from the probate court.

Informal probate is available only when the decedent left a document that satisfied all of the valid will requirements in New Mexico, or when the lack of a will is undisputed. The estate also can’t have any property disputes, contested claims, or other forms of probate litigation filed against it.

To determine which process makes the most sense for the estate you are managing, reach out to Don Harris and the experienced team at New Mexico Financial & Estate Planning Attorneys. They can help you determine the quickest, least expensive, and most painless process available to you, given the characteristics of the estate in question.

New Mexico Small Estate Affidavit FAQ

What is the maximum estate value that qualifies for a small estate affidavit in New Mexico?

The New Mexico small estate threshold is below $50,000.

How long must I wait after a death to file a small estate affidavit in New Mexico?

At least 30 days.

Can I use a small estate affidavit to transfer real estate in New Mexico?

No. Small estate affidavits may only be used to transfer personal property. 

What is the difference between a small estate administrative proceeding and a small estate affidavit proceeding in New Mexico?

There is a separate procedure for small estates summary administrative procedure (NM Stat § 45-3-1203), which is a probate proceeding. A small estate affidavit on the other hand is a limited, nonprobate procedure for collecting personal property (NM Stat § 45-3-1201). This can be confusing. Both procedures seek to streamline the process of dealing with small estates, but the mechanisms are different.

With a small estate summary administrative procedure, a personal representative may immediately disburse if there are no assets to pay creditors after paying family and personal property allowances, funeral expenses, hospital expenses for the last illness, and administrative expenses. This procedure is a small estate, an actual probate procedure which is described as a “summary administrative procedure” (NM. Stat. § 45-3-1203).  

However, a small estate affidavit is a process that is only used when no probate is pending (NM Stat. § 45-3-1201(A)(3)). 

A small probate summary administrative procedure and the small probate affidavit procedure are actually mutually exclusive.   

Get Help Expediting Probate With a Small Estate Affidavit in New Mexico

Settling a small estate should be straightforward, but this isn’t always the case. You may have concerns about creditor claims, disgruntled family members, or unclear estate plans. You may also want to perform due diligence to ensure that all your legal obligations have been met.

Working with an attorney can provide you with the guidance you need. When you come to New Mexico Financial & Estate Planning Attorneys, we can perform a thorough review of your estate, consider your options in light of the Uniform Probate Code, and help you determine whether a small estate affidavit would be appropriate. We can also help you manage all of your obligations, including paying the appropriate parties, to reduce the likelihood of unexpected claims or attempts to hold you liable.

Reach out to our firm at any time when you call (505) 503-1637 or contact us online. We’ll schedule an appointment with a knowledgeable, experienced lawyer and help you settle your loved one’s affairs using the quickest, most efficient methods available.