Probate in New Mexico: small estates, no will, skipping court

Updated 2026-10-18

The short answer

In New Mexico, family can skip probate with a small estate affidavit if the entire estate is $50,000 or less, 30 days after death, though it can't transfer real estate. A transfer on death deed can pass a home without court. Larger estates use informal or formal probate. New Mexico has no estate or inheritance tax in practice.

When someone dies in New Mexico, the family's first question is usually practical. Do we have to go to court, and how long will it take?

Often the answer is no, or not for long. New Mexico has a small estate affidavit, a home affidavit for surviving spouses, a simple informal probate, and a deed that passes a house without court at all. This page covers each one, plus who inherits if there is no will. It is part of our state-by-state estate planning guides. If the word is new, start with what probate is.

Can my family use a small estate affidavit in New Mexico?

Yes, if the estate fits. New Mexico has three shortcuts (NMSA 45-3-1201, 45-3-1203 to 45-3-1205).

Item	Small estate affidavit	Homestead affidavit	Summary administration
What it covers	Money and personal property	A home the spouses owned as community property, passing to the surviving spouse	The whole estate, through a personal representative
Value limit	Entire estate, wherever located, $50,000 or less after liens	Home's assessed value for property tax $500,000 or less	Estate no more than family allowances, administration costs, last-illness medical bills and reasonable funeral costs
Earliest you can use it	30 days after death	6 months after death	Once the inventory is done
Other conditions	No personal representative applied for or appointed anywhere; can't transfer real estate	Funeral, last-illness and unsecured debts paid; the rest of the estate wouldn't need probate; recorded with the county clerk	Can distribute right away without notice to creditors and close by sworn statement

Two details trip people up. The $50,000 limit counts the entire estate, not just the accounts being collected. And the small estate affidavit can't move a house. For that, look at the homestead affidavit or a transfer on death deed, below.

Who inherits if there's no will?

New Mexico is a community property state, and that shapes everything (NMSA 45-2-102).

Community property: your half goes entirely to your surviving spouse, even if you have children.
Separate property: your spouse takes all of it if you have no descendants. If you do, your spouse takes one-fourth and your descendants take the rest.

Anything that doesn't pass to a spouse goes in this order (NMSA 45-2-103):

Your descendants, by representation.
Your parents equally, or the surviving parent.
Your parents' descendants: brothers, sisters, nieces and nephews.
Half to each side's grandparents or their descendants, or all to one side if the other side has nobody living.
Descendants of a spouse who died before you.

Notice that friends never appear on this list. If you want a friend, a charity or a favorite neighbor to receive anything, it has to be in a will or trust. Our post on dying without a will covers what happens when the list runs short.

One New Mexico rule to know when you write that will: handwritten, unwitnessed wills are not valid here, and there is no rule that rescues a will signed the wrong way (NMSA 45-1-201, 45-2-502, 45-2-503). A will needs two witnesses who sign in front of you and each other.

Who serves as personal representative?

New Mexico calls the executor a "personal representative." If more than one person wants the job, the law sets the order (NMSA 45-3-203):

The person named in the will.
A surviving spouse who inherits under the will.
Other people who inherit under the will.
The surviving spouse.
Other heirs.
Any creditor, 45 days after death.

People in groups 2 through 5 may nominate someone else. A personal representative is a fiduciary: legally required to act in the estate's interest and follow what the will says.

New Mexico doesn't require the personal representative to live in the state. The only disqualifications are being under the age of majority or being found unsuitable by the court in formal proceedings. A son in Texas or a niece in Ohio can serve. A personal representative appointed in your home state also has priority in New Mexico, unless the will names different people for each state.

Informal or formal probate: which one?

New Mexico follows the Uniform Probate Code, with informal and formal probate. The district courts and the county probate courts both handle informal probate (NMSA 45-1-302.1).

Informal probate is the lighter of the two paths. Formal probate is the court-supervised path. Either way, probate or appointment generally must start within three years after death, with some exceptions (NMSA 45-3-108).

Our post on the probate process walks through the steps, and how long probate takes covers timing.

How long do creditors have?

The personal representative may publish a notice once a week for three weeks. Creditors then have four months after the first publication to come forward (NMSA 45-3-801).

Creditors who get a mailed or delivered notice have the later of four months after publication or 60 days after the notice. Debts from before death are barred in any case one year after death, if they were never presented (NMSA 45-3-803).

How much is the personal representative paid?

New Mexico says "reasonable compensation" (NMSA 45-3-719). There is no percentage schedule in the statute.

If the will sets a fee, the personal representative may turn it down before taking the job and take reasonable compensation instead. Our post on what an executor gets paid compares approaches.

Can my house skip probate?

Yes, with a transfer on death deed. New Mexico's Uniform Real Property Transfer on Death Act lets you pass your home to the people you choose at your death (NMSA 45-6-401 to 45-6-417).

What to know:

It must have the parts of a recordable deed, including your signature acknowledged before a notary.
It must say the transfer happens at your death.
It must be recorded with the county clerk where the property is, before your death.
You can revoke it. The statute includes an optional form and an optional revocation form.

A living trust is the other common way to keep a home out of court. Our posts on what a trustee does and how to avoid probate compare the options.

Will my heirs owe New Mexico estate or inheritance tax?

Not in practice. New Mexico has no inheritance tax statute. Its Estate Tax Act is still on the books, but the tax equals a federal credit that has been repealed, so it comes to zero (NMSA 7-7-2, 7-7-3; New Mexico Taxation and Revenue Department).

Which path fits?

Your situation	Likely path in New Mexico
Whole estate $50,000 or less, no real estate	Small estate affidavit, 30 days after death
Community property home passing to the spouse, assessed at $500,000 or less	Homestead affidavit, 6 months after death
Home with a recorded transfer on death deed	Passes to the beneficiary without probate
Estate no larger than allowances, costs and last bills	Summary administration
Larger estate	Informal or formal probate

Here is a typical case, a composite. Barbara, 75, lived in Albuquerque and never married. Her home had a recorded transfer on death deed naming her niece. Her accounts came to well under $50,000. Thirty days after Barbara died, her niece used the affidavit for the accounts, and the house passed under the deed. There was no court case.

Some people would rather not leave this to a niece in another state. A Kinly membership lets you name a professional executor or trustee, first or as backup to someone you choose. If that work is ever done, it is charged by the hour, and you see the rates before anything starts.

Before death, the papers that matter most are your powers of attorney. See our New Mexico financial power of attorney guide and New Mexico medical power of attorney guide.

Common questions

What is the small estate limit in New Mexico?

$50,000 for the entire estate, wherever located, less liens. The family must wait 30 days after death, and the affidavit can't transfer real estate.

Does a surviving spouse inherit everything in New Mexico?

Not always. With no will, the spouse gets all of the deceased spouse's half of the community property. For separate property, the spouse gets all of it only if there are no descendants; otherwise one-fourth.

Is a handwritten will valid in New Mexico?

No. New Mexico's probate code says a will does not include a holographic will. A will needs two witnesses who sign in front of you and each other.

Can someone who lives in another state be a personal representative in New Mexico?

Yes. The statute has no residency requirement. The only disqualifications are being under the age of majority or being found unsuitable by the court.

Does New Mexico have an estate or inheritance tax?

Not in practice. There is no inheritance tax statute, and the estate tax is tied to a repealed federal credit, so it comes to zero.

Sources

This page is general information, not legal or financial advice. Laws vary by state.

Keep reading

State guidesPower of attorney in New Mexico: rules, signing, who to namePower of attorney in New Mexico is durable by default, and a notarized statutory form must be accepted by banks. Here's how to sign it and who to name.State guidesMedical power of attorney in New Mexico: how to sign oneMedical power of attorney in New Mexico: no witnesses or notary required, the optional state form, your written wishes, and who decides if you name nobody.State guidesEstate planning by state: guides for all 50 statesEstate planning by state: what stays the same everywhere, what changes, and power of attorney, medical and probate guides for all 50 states.