New Mexico has adopted the Uniform Probate Code and offers a streamlined informal probate process. New Mexico is also a community property state, which affects how assets pass between spouses. This guide walks through every option.
Dealing with a loss? Omuna helps you manage everything.
Free checklist, notification templates, obituary writer, and memorial pages — all in one place.
Does New Mexico Always Require Probate?
No. Assets that pass outside of probate include those held in a revocable living trust, real estate transferred by a Transfer-on-Death Deed (New Mexico adopted the Uniform Real Property Transfer on Death Act effective January 1, 2014), accounts with payable-on-death or transfer-on-death designations, life insurance and retirement accounts with named beneficiaries, joint tenancy property with right of survivorship, and community property with right of survivorship for spouses.
Community Property in New Mexico
New Mexico is one of nine community property states. Most property acquired during marriage is owned 50/50 by both spouses regardless of whose name is on the title. When one spouse dies, the surviving spouse already owns half — only the deceased's half passes through probate.
The New Mexico Small Estate Affidavit
For estates with a total value (real and personal, less liens and encumbrances) of $50,000 or less, New Mexico allows a Small Estate Affidavit under NMSA § 45-3-1201. The affidavit can be used 30 days after death and is presented directly to institutions holding the assets — no court filing required. Note that this affidavit can only be used to collect personal property (money, tangible items, stocks, and similar assets); it cannot be used to perfect title to real estate.
Omuna's free checklist tracks all of this for you.
Probate is one piece of a much bigger puzzle. Omuna's free checklist helps you track every step — from the death certificate to closing the estate.
See the full checklist →Informal vs. Formal Probate
- Informal probate: New Mexico's preferred path. Handled administratively by the District Court Probate Registrar (not a judge). Letters are issued promptly without a hearing.
- Formal probate: Required when there's a will contest, when the will is unclear, when notice issues arise, or when other complications need a judge.
- Supervised administration: The court actively supervises every step.
How to Open Informal Probate in New Mexico
- File an Application for Informal Probate of Will and Informal Appointment of Personal Representative in the District Court of the county where the deceased was domiciled.
- The Probate Registrar reviews the application — usually within a few weeks.
- If approved, the court issues Letters Testamentary or Letters of Administration. No court hearing is required for informal probate.
New Mexico Personal Representative Compensation
New Mexico allows "reasonable compensation" for the personal representative under NMSA § 45-3-719. There is no statutory percentage. Personal representatives typically charge 1–4% of the estate value, with adjustments for complexity, though this is market practice, not a legal requirement.
Creditor Claims in New Mexico
The personal representative may publish a Notice to Creditors. Once published, creditors generally have 4 months from the date of first publication to file claims, or 60 days from the date of mailing for creditors who receive direct written notice, whichever is later. Without published or actual notice, claims that arose before death are barred under NMSA § 45-3-803 after 1 year from the date of death regardless.
Pro tip
New Mexico is a community property state. The surviving spouse already owns half of the community property — only the deceased's half passes through probate. Mischaracterizing community vs. separate property is one of the most common errors in New Mexico estates.
New Mexico Intestacy
If there's no will, New Mexico's intestacy statute, NMSA § 45-2-102, treats community and separate property differently:
- Community property: The surviving spouse's own half was always theirs; the decedent's half of the community property passes entirely to the surviving spouse.
- Separate property: If there's no surviving descendant of the decedent, the spouse takes the entire separate estate. If there is a surviving descendant, the spouse takes 1/4 of the separate property, with descendants taking the remaining 3/4.
New Mexico Has No State Estate or Inheritance Tax
New Mexico has no state estate tax and no inheritance tax. Only the federal estate tax applies, with its exemption of $15 million per person for 2026. The large majority of New Mexico estates owe no estate or inheritance tax of any kind.
You're reading about probate in New Mexico. Here's what else is on the list.
- Locate the Will and legal documents
- Apply for death certificates (Multiple copies)
- Start the probate process (Contact Attorney)this guide
- Notify any additional creditors
- Prepare final accounting for probate
- Close the estate formally
- + 62 more tasks across all four phases
This article is for informational purposes only and does not constitute legal advice. Laws in New Mexico may change. Consult a licensed New Mexico attorney for guidance specific to your situation.