Probate in New Mexico: What Your Family Goes Through Without a Will

In New Mexico, probate handles most estates, with a short list of exceptions. The law calls it intestate succession when a person dies without a will. An estate will go through probate in New Mexico if if intestate succession applies, with a few exceptions.

• Any life insurance policies that have a designated beneficiary.

• Any retirement accounts with a listed beneficiary.

• Any bank or brokerage accounts that have a payable-on-death or transfer-on-death designation.

• Any property owned jointly that have right of survivorship.

If none of these apply, an estate without a will does go through probate in New Mexico, unless you opt for a small estate affidavit, which only applies if the estate is valued at $50,000 or less.

Succession Laws Without a Will in New Mexico

Before getting into who inherits what, it helps to know how New Mexico treats marital property. New Mexico is one of nine community property states. Property acquired during the marriage generally belongs equally to both spouses, so a surviving spouse already owns half of it, and inherits the decedent's half of it too. Only separate property, acquired before the marriage or by gift or inheritance, is split under intestate succession.

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If none of the exceptions above apply, the estate will go through probate and be distributed as follows.

• Your spouse always inherits your entire half of the community property.

• If you have descendants, your spouse also inherits 1/4 of your separate property. Your descendants inherit the remaining 3/4.

• If you have no descendants, your spouse inherits all of your separate property too.

• If you have children but no spouse, your children inherit everything, divided equally.

• If you have no spouse and no children, your parents are next in line to inherit everything.

New Mexico Probate Process

New Mexico probate is filed through the Probate Court, and most estates take 4 to 12 months to close. New Mexico has no state estate or inheritance tax, and a surviving spouse can transfer a community property home valued at $500,000 or less using a special affidavit after a six-month wait, avoiding formal probate for the residence.

Avoiding Probate in New Mexico

Probate isn't mandatory for every asset. Here's how people commonly get around it.

• By placing all assets in a revocable living trust

• Through listing beneficiary designations on financial and retirement accounts

• By titling real estate with your spouse as community property with right of survivorship

• By establish joint ownership with right of survivorship  

Want to learn more about trusts in New Mexico? This is what you’ll need for a trust.