New Mexico
New Mexico Probate and Intestate Succession: What Happens Without a Will (2026)
Independently fact-checked against primary sources (last audited August 20, 2026). · Reviewed by the RecordingLaw editorial team. · Law checked current as of August 20, 2026. · 7 primary sources cited on this page. How we verify our legal content
New Mexico runs a two-tier probate system: county Probate Courts, each led by an elected, non-attorney judge, handle uncontested matters, while District Courts handle formal and contested cases. As one of nine community-property states, New Mexico's intestate succession rules work differently than in most of the country.
Information last verified on 2026-07-16. This article has not yet been reviewed by a licensed lawyer.
How Probate Works in New Mexico
New Mexico is a Uniform Probate Code state: NMSA 1978, Chapter 45, is New Mexico's own version of the Uniform Probate Code, and the state uses the classic three-track UPC model. Informal probate and appointment proceedings, under NMSA 1978 § 45-3-301 et seq., let an interested party file a sworn application with a county Probate Court or a District Court and receive appointment as personal representative without a hearing, for straightforward, uncontested estates. Formal testacy proceedings, under NMSA 1978 § 45-3-401 et seq., are litigated in District Court and are used to determine whether a will is valid, to establish that a decedent died intestate, or to resolve a dispute or set aside an earlier informal probate. Supervised administration, the third track, keeps a case under ongoing, active court oversight and is reserved for contested or higher-risk estates.
New Mexico's county Probate Courts are constitutionally established under Article VI of the New Mexico Constitution. Each of the state's 33 counties elects its own probate judge, who need not be an attorney, and these courts handle informal, uncontested probate and small estate affidavits. New Mexico's District Courts hold concurrent and exclusive jurisdiction over formal and contested probate and testacy proceedings under NMSA 1978 § 45-1-302, meaning a case that starts informally in Probate Court can move to District Court if it becomes contested.
Intestate Succession in New Mexico: Who Inherits Without a Will
New Mexico's status as a community property state changes the mechanics of intestate succession in a way that separate-property states like New Jersey and New York do not share. Under NMSA 1978 § 45-2-102, a surviving spouse's one-half interest in community property already belongs to that spouse outright; it was never the decedent's to leave to anyone. Intestate succession law only governs the decedent's own one-half interest in the community property, the half the decedent could have disposed of by will, and that half passes entirely to the surviving spouse, regardless of whether the couple had children together or from another relationship.
The decedent's SEPARATE property (generally, property owned before the marriage or received individually by gift or inheritance during it) follows a different rule. If the decedent leaves no surviving descendant, the surviving spouse takes the entire separate intestate estate. If the decedent does leave a surviving descendant, the surviving spouse takes only one-fourth of the separate property, and the remaining three-fourths passes to the decedent's descendants by representation.
Any part of the intestate estate that does not pass to a surviving spouse, or the whole estate if there is no spouse, passes under NMSA 1978 § 45-2-103: first to the decedent's descendants by representation; if none, to the decedent's parents, equally or to the survivor; if none, to the descendants of the decedent's parents (siblings and their issue) by representation; and if none of those survive, half to the surviving grandparents and their descendants on the paternal side and half on the maternal side.
One way to make sure your property goes to the people you actually choose, rather than following New Mexico's intestate succession order and its community-property/separate-property split, is to have a valid will in place. recordinglaw.com's free New Mexico Last Will and Testament Generator can help you create one, with no account required.
Small Estate and Simplified Probate in New Mexico
New Mexico's small estate procedure is a collection-by-affidavit mechanism under NMSA 1978 § 45-3-1201. An interested party can collect a decedent's personal property by presenting a notarized affidavit once at least 30 days have passed since the date of death, as long as the value of the entire estate, wherever located and after subtracting liens and encumbrances, does not exceed $50,000. This procedure covers personal property, such as bank accounts and vehicles; it does not provide an independent mechanism for transferring real property, which generally still requires some form of probate.
Does New Mexico Have an Estate or Inheritance Tax?
New Mexico has no state estate tax. It was repealed in 2005, tied to the phase-out of the federal state death tax credit that many states' estate taxes had depended on. New Mexico also has no state inheritance tax. The only estate tax that can reach a New Mexico estate is the federal estate tax, which in 2026 applies only to estates above a $15,000,000 per-person exemption under current IRS guidance, following the One Big Beautiful Bill Act of 2025. For the overwhelming majority of New Mexico estates, neither a state nor a federal estate tax applies. New Mexico does tax the income earned by an estate or trust under its regular state income tax, but that is separate from a tax on the transfer of the property itself.
Do You Need a Probate Attorney?
New Mexico's informal probate track and its $50,000 small estate affidavit are both designed to be usable without an attorney for a straightforward, uncontested estate. A probate attorney becomes more important when an estate mixes community and separate property in a way that is hard to trace, when a will is likely to be contested, when the estate includes a business interest, or when a family situation is blended enough that the intestate succession rules above do not cleanly answer who inherits.
See Probate by State to compare New Mexico's community-property approach with how common-law states handle the same question.
Disclaimer
This article provides general information about probate and intestate succession in New Mexico as of the verification date above. It is not legal advice and does not create an attorney-client relationship. It is not a substitute for advice from a probate attorney licensed in New Mexico, particularly where community and separate property are mixed, a will is likely to be contested, or the estate includes a business interest. Figures and thresholds change; verify current details directly with the New Mexico courts before relying on any figure here.
Last updated: 2026-07-16. Figures and statutes cited reflect their in-force version as of 2026-07-16.
More New Mexico Laws
Frequently Asked Questions
What court handles probate in New Mexico?
County Probate Courts, each with an elected, non-attorney judge, handle informal and uncontested probate. District Courts handle formal testacy proceedings and contested cases under NMSA 1978 § 45-1-302.
Is New Mexico a community property state?
Yes. New Mexico is one of nine U.S. community property states. A surviving spouse's own half of community property already belongs to them; intestate succession only governs the decedent's half.
Who inherits community property if you die without a will in New Mexico?
The decedent's one-half interest in community property passes entirely to the surviving spouse under NMSA 1978 § 45-2-102, regardless of whether there are surviving children.
What happens to separate property under New Mexico intestate succession?
If there are no surviving descendants, the spouse takes all of the decedent's separate property. If there are descendants, the spouse takes one-fourth and the descendants take three-fourths.
What is New Mexico's small estate threshold?
$50,000 in personal property, collectible by notarized affidavit once 30 days have passed since death, under NMSA 1978 § 45-3-1201. Real property is not covered by this procedure.
Does New Mexico have an estate or inheritance tax?
No. New Mexico repealed its state estate tax in 2005 and has never had a state inheritance tax. Only the federal estate tax, which applies to estates above $15,000,000 per person in 2026, can apply.
How long does informal probate take in New Mexico?
There is no single statutory timeline for a full administration, but informal probate is generally available for up to three years after the date of death, and uncontested cases often resolve faster than that outer window.
Updates
Independently fact-checked against the cited primary sources; governing law re-checked for recent changes
Governing law re-checked for recent changes
Reviewed and approved by an editor
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
New Mexico Statutes Annotated 1978, Chapter 45
§ 45-1-302Subject matter jurisdiction of district and probate courtsIn force
A. The district court has exclusive original jurisdiction over all subject matter relating to: (1) formal proceedings with respect to the estates of decedents, including determinations of testacy, appointment of personal representatives, constructions of wills, administration and expenditure of funds of estates, determination of heirs and successors of decedents and distribution and closing of estates; (2) estates of missing and protected persons; (3) protection of incapacitated persons and minors; (4) survivorship and related accounts and similar property interests; (5) disclaimer of interests in property; (6) apportionment of taxes on estates; and (7) governing instruments except wills. B. The district court in formal proceedings shall have jurisdiction to determine title to and value of real or personal property as between the estate and any interested person, including strangers to the estate claiming adversely thereto. The district court has full power to make orders, judgments and decrees and to take all other action necessary and proper to administer justice in matters that come before it. C.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at nmonesource.com
Cited in 13 court opinionsMost recently applied by a court: 2025
Leading cases:
- Martinez v. Segovia (New Mexico Court of Appeals 2002, 133 N.M. 240)“…t, a determination of heirship would resolve the issue, see NMSA 1978, §§ 45-1-302(A)(1) (1978); 45-3-407 (1975), and Mrs.…”
- Tartaglia v. Hodges (New Mexico Court of Appeals 2000, 129 N.M. 497)“…rt clearly has jurisdiction to hear the issues at hand. See NMSA 1978, § 45-1-302 (1978). The only question is whether th…”
- Wilson v. Fritschy (New Mexico Court of Appeals 2002, 132 N.M. 785)“…Uniform Probate Code. NMSA 1978, § 45-1-301(A), (E) (1975); NMSA 1978, § 45-1-302(A) (1978). Meadows' 1996 will and trust…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 45-2-102Share of the spouseIn force
The intestate share of the surviving spouse is determined as follows: A. as to separate property: (1) if there is no surviving issue of the decedent, the entire intestate estate; or (2) if there is surviving issue of the decedent, one-fourth of the intestate estate; and B. as to community property, the one-half of the community property as to which the decedent could have exercised the power of testamentary disposition passes to the surviving spouse.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at nmonesource.com
Cited in 14 court opinionsMost recently applied by a court: 2025
Leading cases:
- Martinez v. Segovia (New Mexico Court of Appeals 2002, 133 N.M. 240)“…ould have exercised the power of testamentary disposition.” NMSA 1978, § 45-2-102(A), (B) (1975). These New Mexico Probat…”
- Bell v. Estate of Bell (New Mexico Court of Appeals 2008, 143 N.M. 716)“…ate share for a surviving spouse is calculated according to NMSA 1978, § 45-2-102 (1975), which considers community and s…”
- In re Montoya (New Mexico Supreme Court 2011, 150 N.M. 731)“…nts. NMSA 1978, § 45-2- 103 (1993) (amended 2011); see also NMSA 1978, § 45-2-102 (1975) (“Share of the spouse.” (emphasi…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 45-2-103Share of heirs other than surviving spouseIn force
A. Any part of the intestate estate not passing to a decedent's surviving spouse pursuant to Section 45-2-102 NMSA 1978, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent: (1) to the decedent's descendants by representation; (2) if there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent if only one survives; (3) if there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation; (4) if there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, on both grandparents' sides: (a) half to the decedent's grandparents on one side equally if both survive, or to the survivor of them if only one survives, or to the descendants of the decedent's grandparents on this side or either of them if both are deceased, the descendants taking by representation; and (b) half to the decedent's grandparents on the other side equally if both survive, or to the survivor of them if only one…
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at nmonesource.com
Cross-referenced in the statute itself: § 45-2-102
Cited in 4 court opinionsMost recently applied by a court: 2024
Leading cases:
- Martinez v. Martinez (New Mexico Court of Appeals 1997, 123 N.M. 816)“…and that title vested in them by intestate succession. See NMSA 1978, § 45-2-103 (Repl.Pamp.1995) (share of heirs other…”
- Spencer v. Paul Barber, Barber & Borg, L.L.C. (New Mexico Supreme Court 2013, 3 N.M. 718)“…disposition of the personal property of deceased persons”); NMSA 1978, § 45-2-103(A)(2) (1993) (amended 2012) (providing…”
- Rienhardt v. Kelly (New Mexico Court of Appeals 1996, 121 N.M. 694)“…e entire estate as an heir under the laws of intestacy, see NMSA 1978, § 45-2-103(A) (Repl.Pamp.1989) (“The part of the i…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 45-3-1201Collection of personal property by affidavitIn force
A. Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating that: (1) the value of the entire estate, wherever located, less liens and encumbrances, does not exceed fifty thousand dollars ($50,000); (2) thirty days have elapsed since the death of the decedent; (3) no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; and (4) the claiming successor is entitled to payment or delivery of the property. B. A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in Subsection A of this section. C.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at nmonesource.com
§ 45-3-301Informal probate or appointment proceedings; application; contents.In force
Applications for informal probate or informal appointment must be directed to the probate or district court and verified by the applicant to be accurate and complete to the best of his knowledge and belief as to the information found in Subsections A through F of this section. A. Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following: (1) a statement of the interest of the applicant; (2) the name and date of death of the decedent; his age and the county and state of his domicile at the time of death; and the names and addresses of the spouse, children, heirs and devisees and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant; (3) if the decedent was not domiciled in New Mexico at the time of his death, a statement showing venue; (4) a statement identifying and indicating the address of any personal representative of the decedent appointed in New Mexico or elsewhere whose appointment has not been terminated; (5) a statement indicating whether the applicant has received a demand…
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at nmonesource.com
Cited in 1 court opinionsMost recently applied by a court: 2000
Leading cases:
- MacIas v. Jaramillo (New Mexico Court of Appeals 2000, 129 N.M. 578)“…filing of appropriate documents under the Probate Code. See NMSA 1978, § 45-3-301 (1978) and § 45-3-401 (1975). Thus, the…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 45-3-401Formal testacy proceedings; nature; when commencedIn force
A. A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing: (1) a petition as described in Subsection A of Section 3-402 [45-3-402 NMSA 1978] in which he requests that the court, after notice and hearing, enter an order probating a will; or (2) a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application; or (3) a petition in accordance with Subsection C of Section 3-402 [45-3-402 NMSA 1978] for an order that the decedent died intestate. B. A petition may request formal probate of a will without regard to whether or not the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative. C. During the pendency of a formal testacy proceeding, the probate court shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent. D.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at nmonesource.com
Cited in 6 court opinionsMost recently applied by a court: 2013
Leading cases:
- Vieira v. Estate of Cantu (New Mexico Court of Appeals 1997, 123 N.M. 342)“…r a petition for an order that the decedent died intestate. NMSA 1978, Section 45-3-401(A) (Repl. Pamp.1995). In a formal testa…”
- In Re Estate of Harrington (New Mexico Court of Appeals 2000, 129 N.M. 266)“…g when he challenged the validity of Decedent's will. See NMSA 1978, § 45-3-401(A) (1975) ("A formal testacy proceeding…”
- In Re the Estate of Duncan (New Mexico Court of Appeals 2002, 132 N.M. 426)“…by transforming this into a formal probate proceeding under NMSA 1978, § 45-3-401(A) (1975) (“A formal testacy proceeding…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Search our full record of US law — 2.1 million sections, every state + federal →
Sources and References
- New Mexico Courts, Probate Forms and Instructions(nmcourts.gov).gov
- NMSA 1978 § 45-2-102, Share of spouse(nmonesource.com).gov
- NMSA 1978 § 45-2-103, Share of heirs other than surviving spouse(nmonesource.com).gov
- NMSA 1978 § 45-3-301, Informal probate and appointment proceedings(nmonesource.com).gov
- NMSA 1978 § 45-3-401, Formal testacy proceedings(nmonesource.com).gov
- New Mexico Courts, Self-Represented Litigant Probate Guide(nmcourts.gov).gov
- IRS, Estate Tax(irs.gov).gov