The New Mexico Probate Process: Step-by-Step

Assess Community vs. Separate Property

New Mexico is a community property state (NMSA § 40-3-8). Before inventorying anything, classify every asset:

• Community property: Assets acquired during marriage while domiciled in New Mexico. Each spouse owns half. Decedent's half passes through probate; surviving spouse's half does not.
• Separate property: Assets owned before marriage, or received during marriage by gift or inheritance. 100% passes through the estate.
• Joint tenancy (JTWROS): Passes automatically to surviving joint tenant — no probate.
• Beneficiary-designated accounts: IRA, 401(k), life insurance, POD/TOD — pass directly, no probate.
• Trust assets: Pass per trust document — no probate.

Choose the Right Procedure

• Small Estate Affidavit (§ 45-3-1201): The decedent's separate property plus the decedent's half of community property must total under $50,000; 30-day wait; present sworn affidavit directly to the institution. No court. No Letters. Real estate cannot be transferred this way.
• Informal Probate (§ 45-3-301): File with the probate registrar. Registrar issues Letters without a hearing. Used when there is real estate or the decedent's share exceeds $50,000.
• Formal Probate (§ 45-3-401): Required for contested wills, disputed heirs, or registrar refusal. A District Court or Probate Court hearing is scheduled.

File the Application for Informal Probate

The Application for Informal Probate must include:

• Decedent's name, date and place of death, and domicile
• Names and addresses of all heirs and devisees
• Name and address of the nominated Personal Representative
• Original will filed with the application (if one exists)
• Statement that the 3-year time limit has not expired

Filing fees range from $90–$135 depending on county. The registrar issues Letters Testamentary (with will) or Letters of Administration (without will) — no hearing if the application is complete.

Get Your EIN and Open the Estate Account

• Apply for a federal EIN at irs.gov — takes minutes online.
• Open a dedicated estate checking account.
• Notify the Social Security Administration of the death.
• Send written notice to all heirs and devisees within 30 days of appointment (§ 45-3-705).
• Secure and insure all real property.

Publish Notice to Creditors — Start the 60-Day Clock

Publish Notice to Creditors once per week for three consecutive weeks in a newspaper of general circulation in the county of probate (§ 45-3-801). The 60-day creditor period begins on the date of first publication.

Send direct written notice to all known creditors. Obtain the Affidavit of Publication and file it with the court.

Prepare the Estate Inventory (Due Within 3 Months)

Prepare an inventory within 3 months of appointment (§ 45-3-706). The inventory covers:

• Decedent's separate property (100%)
• Decedent's one-half share of community property (surviving spouse's half is not included)

Label each item as community or separate property. All assets valued at date of death. In informal probate, the inventory is not filed with the court but must be provided to any interested party who requests it.

Manage Estate Assets During Administration

• Route all estate income through the estate account.
• Continue mortgage, property tax, insurance, and utility payments on real property.
• Retitle investment accounts in the estate's name.
• For mineral interests: redirect royalty payments from oil/gas operators to the estate account.

The Personal Representative has independent statutory authority (§ 45-3-715) to sell estate property without court approval when needed.

Review Claims and Pay Debts

After the 60-day creditor period closes, review all claims. Allow or reject each claim. A rejected creditor has 60 days from the notice of rejection to petition the court (§ 45-3-804).

If the estate is insolvent, pay claims in this priority order (§ 45-3-805):

1. Costs and expenses of administration
2. Reasonable funeral expenses
3. Federal taxes and debts with federal preference
4. Reasonable medical expenses of the last illness
5. State taxes and debts with New Mexico preference
6. All other claims

File Tax Returns

Transfer Property, Distribute, and File the Closing Statement

Real property: Execute a Personal Representative's Deed for each New Mexico parcel (the decedent's share only for community property). Record with the county clerk in the county where the property is located.

Vehicles: Transfer title at the New Mexico MVD with certified Letters and death certificate.

Financial accounts: Present certified Letters and death certificate to each institution. Obtain signed receipts from each beneficiary.

Closing Statement (§ 45-3-1003): File with the probate registrar after all assets are distributed. No hearing required. Cannot be filed until at least 6 months after the date of appointment. The PR's liability ceases one year after filing.