4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Some of the terminology in New Mexico differs from that provided in 4.04.1 of the Underwriting Manual.

Ademption is referred to as Revocation. NMSA 1978 ' 45-2-507.

Personal Representative includes the terms Administrator, Administratrix, Administrator Cum Testamento Annexo, and Administrator or Administratrix D.B.N. NMSA 1978 ' 45-1-201(A)(34).

An Advancement may be made to any heir, not only by a parent to a child. NMSA 1978 ' 45-2-109.

A Conditional Bequest may be conditioned only upon an event of independent significance. NMSA 1978 ' 45-2-512.

Curtesy has been abolished in New Mexico. NMSA 1978 ' 45-2-112.
Inheritance Tax is subsumed within the term Estate Tax. NMSA 1978, '' 7-7-1 to -12.

Devise in New Mexico has the Uniform Probate Code definition.

Distributee in New Mexico has the Uniform Probate Code definition.

Dower has been abolished in New Mexico. NMSA 1978 ' 45-2-112.

The terms Executor and Executrix are included within the term Personal Representative. NMSA 1978, ' 45-1-201(A)(34).

The Family Allowance in New Mexico is $30,000.00. NMSA 1978, ' 45-2-2402. In addition, New Mexico has a Personal Property Allowance in the amount of $10,000.00. NMSA 1978, ' 45-2-403.

Forced Heirs are not recognized in New Mexico.

Heirs in New Mexico include the surviving spouse and the State. NMSA 1978, ' 45-1-201(A)(20).

Unwitnessed Holographic Wills are not recognized in New Mexico, NMSA 1978, ' 45-1-201(A)(53), unless the Holographic Will is a foreign will that was valid in the jurisdiction where made, NMSA 1978, ' 45-2-506.

Inchoate Right of Curtesy and Inchoate Right of Dower do not apply in New Mexico. NMSA 1978, ' 45-2-112.

With regard to Lapsed Devise and Lapsed Legacy, New Mexico has an anti-lapse statute. NMSA 1978, ' 45-2-603.

New Mexico does not have a Mortmain Statute.

Nuncupative Wills are not recognized in New Mexico.

The Right of Election is not available to the surviving spouse, except to the extent of the Family Allowance, NMSA 1978, ' 45-2-402.

With regard to Surviving Spouse's Allowance, see Family Allowance.

A Testator in New Mexico includes an individual of either sex. NMSA 1978, ' 45-1-201(A)(49).

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

Proceedings to probate a will and to administer an intestate's estate must be commenced within three years after the decedent's death. NMSA 1978, ' 45-3-108.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

New Mexico does not recognize tenancy by the entirety, dower or curtesy. NMSA 1978, '' 40-3-2, 45-2-112. New Mexico is a community property state, and the disposition of property under the laws of intestacy depends upon the classification of property as community or separate. NMSA 1978, ' 45-2-805. Community property in New Mexico is divided equally, one-half to each spouse. Id.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

New Mexico recognizes joint tenancies. NMSA 1978, ' 47-1-36. There is no statutory procedure to pass title held in joint tenancy upon the death of a joint tenant. Customary practice is to file an affidavit of death or a certified copy of the death certificate with the County Clerk's office where the real estate is located.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

A surviving spouse or minor or dependent child is entitled to a Family Allowance totaling $30,000.00. NMSA 1978, ' 45-2-402. The Family Allowance is exempt from and has priority over all claims against the estate. Id. In addition, a surviving spouse or child who is a devisee under the will is entitled to a Personal Property Allowance totaling $10,000.00. NMSA 1978, ' 45-2-403.

A surviving spouse may be permitted to take against a premarital will. NMSA 1978, ' 45-2-301. New Mexico law also provides for pretermitted children. NMSA 1978, ' 45-2-3-2. However, neither spouse nor children can take if will expresses a contrary intention.

Summarize the steps required for a testate administration. Provide statutory citations.

Administration of an estate is commenced when the court issues letters. NMSA 1978, ' 45-3-103. An administration may be either formal, NMSA 1978, '' 45-3-401 to -414, or informal, NMSA 1978, '' 45-3-301 to -311. An informal proceeding is commenced by an application with the Probate Court or District Court, NMSA 1978 ' 45-3-301, whereas a formal proceeding is commenced by filing a petition with the District Court, NMSA 1978, ' 45-3-402.

The personal representative must provide notice to the heirs and devisees within 10 days after appointment. NMSA 1978 ' 45-3-705. Application for an informal administration may be made 120 hours after the decedent's death. NMSA 1978, ' 45-3-302. In formal proceedings, a hearing may be held, and the district court will enter a final order at the closing of probate. NMSA 1978 ' 45-3-409.

Summarize the steps required for an intestate administration. Provide statutory citations.

Administration of an intestate estate is substantially similar to administration of a testate estate.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

A court's determination of heirship is a quiet title suit is conclusive. In addition, the Probate or District Court may determine heirship in a separate, partial probate proceeding or as part of a full probate proceeding, and this determination of heirship must be challenged within six months after the filing of the closing statement. NMSA 1978, ' 45-3-1005. Also see the next answer with regard to a statutory affidavit of successor in interest.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

New Mexico statute provides for collection of personal property by affidavit when the value of the estate is less than $30,000.00. NMSA 1978, '45-3-1201, -1202. The claimant may file an affidavit 30 days after the decedent's death, and this affidavit will effect a change in ownership as to personal property only. Id.

New Mexico statute provides a summary administration procedure for small estates (i.e., value of entire estate less than sum of family allowance, personal property allowance, costs and expenses of administration, and reasonable and necessary expenses of last illness and funeral). NMSA 1978, ' 45-3-1203 to -1206. A small estate is closed when the personal representative files with the court a verified closing statement. NMSA 1978, ' 45-3-1204.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

There is also a statutory procedure for supervised administration. NMSA 1978, ' 45-3-501 to -505. A supervised administration is a single, in rem proceeding to secure complete administration and settlement of an estate under the continuing authority of the district court. NMSA 1978, ' 45-3-501. The personal representative of a supervised estate may not make any distribution without prior order of the district court. NMSA 1978, ' 45-3-504.

Does your state statutes provide for an ?inheritance? tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

Yes. NMSA 1978, ' 7-7-1 to -12. The amount of the state tax is equal to the federal credit imposed on the transfer of the net estate of every New Mexico resident. NMSA 1978, ' 7-7-3(A). The state return is due on the same date of the federal estate tax return is due. NMSA 1978, ' 7-7-5.

Does your statutes provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

Yes. Although the Estate Tax Act does not provide for a lien, the Estate Tax Act provides in Section 7-7-10 that it will be administered and enforced as provided in the Tax Administration Act. Section 7-1-37 of the Tax Administration Act provides for a lien.

The lien arises upon both assessment of and demand for the tax. NMSA 1978, ' 7-1-37(B). The State may perfect the lien by recording a notice of lien in the county clerk's office where the property is located. NMSA 1978, ' 7-1-38. The lien may be enforced by foreclosure. NMSA 1978, ' 7-1-40. The lien will be extinguished if not enforced within ten years after the date of filing. NMSA 1978, ' 7-1-39.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

If the real property is located outside the county where the estate is being administered, the personal representative must record a notice of administration with the county clerk of the county where the property is located. NMSA 1978, ' 45-1-104. Unless the administration is supervised, the personal representative may sell real property during the pendency of the administration, without notice, hearing or order of court. NMSA 1978, ' 45-3-711. This power is subject only to the personal representative's fiduciary duties. Id. New Mexico statute expressly authorizes the personal representative to convey real property. NMSA 1978, ' 45-3-715 (A)(6). If the administration is supervised, the personal representative must obtain prior order of the district court before disposing of any of the estate's property. NMSA 1978, ' 45-3-504.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

The personal representative's power to sell real property during a testate administration is substantially similar to the personal representative's power to sell real property during an intestate administration.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

The personal representative in a supervised administration must obtain the prior order of the court before making any distributions. NMSA 1978, ' 45-3-504. Any interested person may file a request for supervised administration. NMSA 1978, ' 45-3-502(A). In addition, in an unsupervised administration the personal representative may request an order of the district court to resolve questions concerning the estate or its administration. NMSA 1978, ' 45-3-704.

Does your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

We assume that this question is asking whether New Mexico recognizes and allows the probate of a will executed in another jurisdiction by a testator who was a New Mexico domiciliary at death but not at the time of the will's execution. New Mexico statute provides for both the informal probate of foreign wills, NMSA 1978, ' 45-3-303, and the formal probate of foreign wills, NMSA 1978, ' 45-3-409. The probate procedures are substantially similar to those for domestic wills. New Mexico recognizes as valid wills that are valid in the jurisdiction where made. NMSA 1978, ' 45-2-506.