Probate Shortcuts in New Mexico

Save time and money when you wrap up an estate in New Mexico.

Updated by , Attorney (University of Arkansas School of Law)

The probate process can be long and drawn-out, costing your survivors time as well as money. Fortunately, New Mexico offers two 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 an out-of-court affidavit procedure that allows inheritors to skip probate altogether. To qualify for this procedure, the estate (the 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. Ann. § 45-3-1201.)

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, and
  • a list of inheritors and their addresses.

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.

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 does not 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, does not exceed the value of:

  • the homestead 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. Ann. § 45-3-1203.)

So what does all this mean? It's tricky not to have an exact dollar amount to compare against the size of your estate, but it really depends on your circumstances—for example, whether you leave behind a spouse and/or children. Some of these amounts also change frequently to match cost of living adjustments.

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. Ann. § 45-3-1204.)

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.

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