Someone died in New Mexico.
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New Mexico's probate paths at a glance:

Intestate succession: community vs. separate property treated differently

New Mexico's intestate succession law (§45-2-102) has a crucial split depending on property type:

Community property intestate: All of the decedent's share passes entirely to the surviving spouse. The surviving spouse already owns their own half, so they end up with 100% of the community property. Children inherit nothing from the community property at the first spouse's death — only at the second death.

Separate property intestate: If no children survive, the surviving spouse gets 100%. If children survive (whether from this marriage or prior), the surviving spouse gets only 1/4 of the separate property, and the children divide 3/4 equally. This is different from UPC states like Alaska and Maine where the spousal share depends on a dollar-threshold tiered structure.

The homestead affidavit for surviving spouses (§45-3-1205)

One of New Mexico's most useful probate-avoidance tools: when a spouse dies and the primary home is community property, the surviving spouse can use an Affidavit of Surviving Spouse (§45-3-1205) to transfer full title without any probate proceedings, provided: (1) at least 6 months have passed since death; (2) the home was the primary residence held as community property; (3) the property's assessed value for property tax purposes does not exceed $500,000; (4) no probate petition has been filed; and (5) the decedent's debts have been paid. The surviving spouse records the affidavit (plus a copy of the deed showing community property status and the death certificate) with the county clerk where the property is located.

This is significantly more generous than most states' small estate affidavits because it covers real estate specifically — typically the most valuable asset in the estate. For many New Mexico couples with a modest family home, the homestead affidavit eliminates the need for any probate proceeding at all at the first death.

Joint tenancy vs. community property in New Mexico

New Mexico has a unique twist: when a married couple acquires real estate and takes title as "joint tenants," there is a presumption that the property is held as "community property with right of survivorship" — a hybrid status that combines the tax advantages of community property (full step-up in basis at first death) with the survivorship benefit of joint tenancy (automatic transfer to surviving spouse). This hybrid status is recognized under §40-3-8(B) and provides significant income tax advantages when the surviving spouse later sells the property.

Keep in mind: the small estate affidavit ($50,000 limit) excludes real estate — NMSA § 45-3-1201(C) states the affidavit "may not be used to perfect title to real estate," and the $50,000 cap is measured on the value of the entire estate wherever located, less liens and encumbrances. Motor vehicles are included in the personal property calculation. The surviving spouse homestead affidavit ($500,000 limit, assessed value) applies only to the community property primary residence — if there are other assets that need to pass, those may still require informal probate. Always consult a New Mexico attorney for situations involving both types. Forms at nmsupremecourt.nmcourts.gov and self-help.nmcourts.gov.

Priority allowances: family allowance and personal property allowance

Before creditors are paid, New Mexico law reserves two allowances for the surviving spouse (or, in some cases, the decedent's children). Both are exempt from and take priority over all claims against the estate, and both are in addition to anything the spouse or children receive by will or by intestacy:

Note: New Mexico does not have a separate "homestead allowance" like some Uniform Probate Code states. Its equivalent spousal protections are the $30,000 family allowance (§ 45-2-402), the $15,000 personal property allowance (§ 45-2-403), and the surviving-spouse homestead affidavit that transfers the community-property residence outright (§ 45-3-1205). Section 45-2-404 NMSA governs the source, determination and documentation of these allowances.

Summary administration (NMSA § 45-3-1203) — skip the creditor period

If the inventory and appraisal show that the value of the entire estate, less liens and encumbrances, does not exceed the family allowance, the personal property allowance, the costs and expenses of administration, the reasonable and necessary medical and hospital expenses of the decedent's last illness, and reasonable funeral expenses, the personal representative may — without giving notice to creditors — immediately disburse and distribute the estate to the persons entitled to it and file a closing statement under NMSA § 45-3-1204. Because summary administration is measured against the allowances and costs rather than a fixed dollar cap, it is a valuable option for modest estates that still need a personal representative appointed (for example, to deal with a title, a claim, or a vehicle) but where little or nothing is left for general creditors after the allowances.

Holographic wills are NOT valid in New Mexico. NMSA §45-1-201(57) defines "will" and expressly states it does NOT include a holographic will. A purely handwritten, signed will with no witnesses is NOT valid in New Mexico, even if the intent is clear. This contrasts with most UPC states (Alaska, Maine, West Virginia, Montana, Wyoming, Utah) that do recognize holographic wills.

A valid New Mexico will requires: (1) a written document; (2) signed by the testator or by someone at the testator's direction in the testator's presence; and (3) signed by at least two individuals who both witnessed either the testator's signing or the testator's acknowledgment of the signature. The witnesses must be present at the time of signing or acknowledgment.

Self-proved wills. A New Mexico will can be "self-proved" by adding a notarized attestation clause signed by the testator and witnesses before a notary. A self-proved will can be admitted to probate without requiring testimony from witnesses — speeding up the probate process. A properly drafted New Mexico will with the self-proving affidavit is the gold standard.

Common will execution mistakes in New Mexico

The most common errors: (1) Only one witness — NM requires two; (2) A witness is also a beneficiary — New Mexico disfavors this: an interested witness does not invalidate the will, but the witness may lose their bequest (§45-2-505); (3) The testator signs after the witnesses — the testator must sign or acknowledge before or at the time witnesses sign; (4) Remote/electronic signing without proper follow-up protocols (New Mexico has limited remote will execution rules). The will is also invalid if the testator lacked testamentary capacity or was under undue influence.

Divorce auto-revokes ex-spouse provisions

New Mexico follows the UPC rule (§45-2-804): a final divorce or annulment automatically revokes all testamentary dispositions to the former spouse, as well as any fiduciary appointments. The will is read as if the former spouse predeceased the testator. Update estate planning documents immediately after any divorce.

Mineral rights and oil and gas royalties

New Mexico is one of the top oil and gas producing states in the US, with the Permian Basin (Eddy, Lea, and Chaves counties in southeast NM) and the San Juan Basin (San Juan County in northwest NM) generating substantial royalty income. Mineral rights are real property in New Mexico and must be specifically: (1) identified and described in the estate inventory, with legal descriptions matching county clerk or State Land Office records; (2) appraised at fair market value (mineral right appraisal is a specialized practice requiring knowledge of current production rates, well status, and market multiples); and (3) transferred through the probate process via a Personal Representative's deed to heirs, or via a separate mineral deed if severed from surface rights.

Severed mineral rights: In New Mexico, mineral rights are frequently severed from surface rights — someone may own surface without minerals, or vice versa. Always check both surface and mineral title in the county clerk's deed records AND the State Land Office records (for state trust land mineral leases). Surface title records are with the county clerk; state trust land mineral records are at the New Mexico State Land Office at nmstatelands.org.

Royalty income during administration: Oil and gas royalty income received while the estate is open (after death, before distribution) is estate income — taxable on the estate's federal fiduciary income tax return (Form 1041) and the New Mexico fiduciary income tax return (Form FID-1). The personal representative should continue monitoring and depositing royalties during administration and maintain careful accounting.

Water rights and acequias

New Mexico is one of the most water-scarce states in the US, and water rights are among the most valuable — and most complex — property interests in the state. Water rights (whether surface water rights issued by the Office of the State Engineer, or acequia shares) are real property and pass through probate.

Acequias are traditional community irrigation systems with roots in Moorish and Spanish colonial water law, which came to New Mexico with Spanish settlement in the 1600s. Many acequias continue to operate today as parciante (shareholder) systems — individual water shares called parajes. These shares are attached to specific land parcels and pass with the land through probate. To transfer an acequia share, the personal representative must work with the acequia association directly.

Office of the State Engineer (OSE): Surface water rights permitted by the OSE are listed in OSE's Water Rights Reporting System (WRRS). To transfer a permitted water right through probate, file a Change of Ownership form with the OSE after recording the Personal Representative's deed or deed of distribution. Contact the OSE at ose.nm.gov.

Middle Rio Grande Conservancy District (MRGCD): Properties within the MRGCD (Bernalillo, Sandoval, Valencia, and Torrance counties along the Rio Grande) have water rights tied to MRGCD assessments. Notify the MRGCD of the ownership change during probate.

Native American lands and Pueblo property

New Mexico has 19 Pueblos and two Apache nations. Land held within Pueblo or tribal land grants — including allotted trust land — is governed by federal Indian law, not state probate law. Probate of allotted Indian trust land goes through the Bureau of Indian Affairs (BIA) probate process. Fee simple land owned individually by a tribal member outside the reservation follows state probate law. If the estate involves any Native American allotted trust land, consult the local BIA Agency office or a federal Indian law attorney. The Southwestern Indian Law Clinic at UNM Law School (lawschool.unm.edu) provides assistance with federal Indian probate.

Community property passes entirely to the surviving spouse when there is no will — regardless of whether there are children. This is the most critical New Mexico intestacy rule. Children inherit nothing from community property at the first spouse's death. This differs from most common-law states where children may have intestate rights at the first death.

Separate property is divided between spouse and children: If the decedent had any children (whether from this marriage or prior), the spouse only gets 1/4 of the separate property and the children divide 3/4. This can create significant family planning complications for blended families, especially when the decedent had children from a prior relationship.

When intestate succession creates problems in New Mexico

The biggest intestacy pitfall for married New Mexico couples: if the decedent had both community property AND separate property (like an inheritance or pre-marriage assets), and there are children, the children immediately inherit 3/4 of the separate property at the first death. A surviving spouse could find themselves co-owning inherited property with stepchildren. A well-drafted New Mexico will allocates separate property to the spouse for life or outright, preventing this fragmentation.