Probate Shortcuts in New Mexico

The probate process can be long and drawn-out, costing your survivors time as well as money. Fortunately, New Mexico offers two types of probate shortcuts for "small estates." If the property you leave behind at your death is below a certain amount, New Mexico allows the property to be transferred more quickly and with less hassle. In other words, if your estate qualifies as "small," your loved ones may be able to use simplified probate procedures, or even skip probate entirely.

Collecting Property With a Small Estate Affidavit

New Mexico offers two out-of-court affidavit procedures—one for personal property and another for real estate—that allow inheritors to skip probate altogether.

Personal Property Small Estate Affidavit

To qualify for this procedure for personal property, the entire estate (real estate and personal property you own at death) must meet these requirements:

• the value of the estate can't exceed $50,000
• no application for the appointment of a personal representative is pending or has been granted in any jurisdiction, and
• at least 30 days have elapsed since the death.

(N.M. Stat. § 45-3-1201 (2024).)

If your estate meets the requirements listed above, your inheritor can sign a simple document under oath, called a small estate affidavit or "affidavit for collection of personal property." (Here's a sample of a New Mexico small estate affidavit.) The document must include certain information, such as:

• statements that the estate fulfills each of the requirements listed above
• the inheritor is entitled to the personal property, and
• a list of inheritors and their addresses.

(N.M. Stat. § 45-3-1201 (2024).)

After signing the document (and swearing to its truthfulness) and having it notarized, the inheritor simply presents the affidavit to the person or institution holding the property—for example, a bank where the deceased person had an account. The inheritor will usually also need to provide a certified copy of the death certificate. After that, the person or institution releases the asset. This process skips probate court entirely.

If an institution or person refuses to release the asset, the inheritor can go to court to ask for an order compelling release of the asset. (N.M. Stat. § 45-3-1202 (2024).)

Small Estate Affidavit for Real Estate

In some situations, a surviving spouse can use an affidavit to obtain the deceased spouse's interest in the couple's home without going through probate. The following must be true—and must be stated in the affidavit—for a surviving spouse to use an affidavit to obtain real estate:

• six months have passed since the death
• the couple was married
• the home was the couple's principal residence
• the home was owned as community property
• the home has a property tax value of $500,000 or less
• no application for the appointment of a personal representative is pending or has been granted in any jurisdiction,
• funeral and last illness expenses have been paid
• the surviving spouse—and no one else—is entitled to the property, and
• no other assets require probate.

After signing the affidavit and having it notarized, the surviving spouse then files it—with a copy of the deed attached—with the county clerk. (N.M. Stat. § 45-3-1205 (2024).)

Simplified Probate: Summary Administration

Another probate shortcut that New Mexico offers is a simplified probate process for small estates, called "summary administration" (or "summary probate") in New Mexico. Unlike the affidavit procedure discussed above, summary administration doesn't allow your survivors to skip probate. However, the probate process is much more streamlined than full probate, saving time, probate fees, and potentially lawyer fees.

You can use summary administration in New Mexico if the value of the entire estate, less liens and encumbrances, doesn't exceed the value of:

• the family allowance under N.M. Stat. § 45-2-402, which is a set amount a surviving spouse—or, if there is no surviving spouse, minor or dependent children—is entitled to under New Mexico law
• the personal property allowance under N.M. Stat. § 45-2-403, which is the value of tangible personal property like vehicles and furniture that a surviving spouse—or, if there is no surviving spouse, children—is entitled to under state law
• costs of administration (costs of probate)
• reasonable and necessary medical expenses of a last illness, and
• reasonable funeral expenses.

(N.M. Stat. § 45-3-1203 (2024).)

So what does all this mean? Calculating an exact dollar amount to compare against the size of your estate can be tricky. It really depends on your circumstances—for example, whether you leave behind a spouse or children.

The bottom line is that if the size of your estate doesn't exceed these amounts, which can be set aside from your estate by law, your executor or personal representative can wrap up your estate in probate court very quickly because there aren't any remaining assets after these amounts are paid out.

If your estate qualifies, your executor or personal representative can immediately distribute the assets without giving notice to creditors. Then the representative files a closing statement, sends a copy of the statement to the inheritors and known creditors, and provides a full accounting to inheritors. (N.M. Stat. §§ 45-3-1203, 45-3-1204 (2024).)

For More Information

For help determining if an estate qualifies for one of these probate shortcuts, or handling an estate in general, see The Executor's Guide, by Mary Randolph (Nolo) or Estate Planning Basics, by Denis Clifford (Nolo).

For more on New Mexico estate planning issues, see our section on New Mexico Estate Planning.