New Mexico

New Mexico splits probate between two different courts, which is unusual and worth
understanding before you file anything.

• The Probate Court in each county handles informal probate — uncontested estates with a
  clear will, decided on the paperwork. The probate judge is an elected county official and need
  not be a lawyer.
• The District Court handles formal probate, and anything contested, unclear or
  complicated. A petition for formal probate must be directed there, not to the Probate Court.

If a matter starts informally and then becomes contested, it moves to the District Court. Choosing
the wrong forum at the outset costs time.

New Mexico has adopted the Uniform Probate Code, so once appointed the personal representative
usually administers the estate unsupervised.

Community property

New Mexico is a community property state. The surviving spouse already owns half of what the
couple acquired during the marriage, so the estate is often half the size the family expects.

No state death tax

New Mexico levies neither an estate nor an inheritance tax. Only the federal return can arise.

What still has to happen

Notice to creditors, an inventory to the interested persons, payment of debts and the final income
tax returns, then distribution and a closing statement. Creditor claims are barred after the
statutory period — publish promptly, because that clock protects the estate.

Smaller estates may be handled by affidavit without any court involvement; ask before opening a
case.

Under NMSA § 45-2-502 a New Mexico will must be in writing, signed by the testator (or by
another in the testator's conscious presence and at their direction), and signed by at least two
witnesses. The testator must be 18 or older and of sound mind.

New Mexico does not recognise holographic wills

This catches people out, because New Mexico adopted the Uniform Probate Code — and the UPC
contains a provision validating handwritten wills. New Mexico left it out. The execution
statute requires two witnesses with no exception for a will in the testator's own hand.

So a handwritten, unwitnessed will made here is not valid, however clear it is. New Mexico
sits with Minnesota and Massachusetts on this rather than with the other UPC states — and notably
not with its neighbours: Texas, Colorado, Arizona, Utah and Oklahoma all accept holographic
wills in some form. New Mexico is the exception in its own region.

There is one saving provision: a holographic will validly made in a state that allows them may
be recognised here under New Mexico's foreign wills statute. That helps someone who moved; it does
not help someone who wrote one at a New Mexico kitchen table.

Make it self-proving

Attach a self-proving affidavit before a notary, so no witness need be located afterwards.

Community property changes what the will controls

A will disposes of the deceased's separate property and their half of the community property,
no more. New Mexico also allows community property with right of survivorship, which passes
outside the will entirely.

Also

• Name an alternate personal representative and waive bond.
• A surviving spouse's community property interest exists whatever the will says.
• Review after a marriage, divorce, birth or a move to New Mexico.

Yes. A New Mexico personal representative is entitled to reasonable compensation for
services performed. New Mexico prescribes no percentage.

What "reasonable" turns on

The size and nature of the estate, the time actually required, the complexity and difficulty of
the work, the skill and any special expertise it demanded, the responsibility assumed, and the
results achieved.

Records decide it

Without a schedule to point at, contemporaneous time records are the whole argument. Dated
entries showing what was done and how long it took, kept from the first week.

Unsupervised means unreviewed, not approved

Under the UPC framework a New Mexico representative appointed informally administers the estate
without court supervision, and nobody examines the fee as it is taken. Any interested person can
still petition afterwards, and the burden of showing the amount was reasonable sits with the
representative.

Agree it in writing with the beneficiaries before taking it. In an informal, unsupervised
estate that agreement is the only approval that exists.

If the will fixes the figure

A will provision governs. The representative may also renounce the will's provision before
qualifying and take reasonable compensation instead — worth knowing where the sum was set long
ago.

Community property affects the base

Remember that only the deceased's half of the community property is in the estate. A fee
proposed as a percentage of what the couple owned rather than what the estate holds will be
roughly double what it should be — an easy and embarrassing error.

Tax

Compensation is taxable income; an inheritance is not. With no New Mexico estate or
inheritance tax for a fee to be deducted against, a family representative who is also a
beneficiary usually gains nothing by taking one.

A New Mexico personal representative is reimbursed from the estate for the reasonable expenses
of administration, separately from compensation for their time.

Normally claimable

• Funeral, burial or cremation, the headstone, and a reasonable reception.
• Probate Court or District Court filing fees, certified letters, certified death certificates,
  and publication of the notice to creditors.
• Attorney's fees, and accountant's fees for the final Form 1040 and any Form 1041.
• Appraisals of real property, ranch land, water rights, mineral and royalty interests,
  vehicles, art, jewellery and collections. Water rights and Spanish and Mexican land grant
  interests both need specialist handling and are easy to miss.
• Carrying costs on estate property until sale: insurance, property tax, utilities, security,
  landscaping and pest control.
• Evaporative cooling or air conditioning and irrigation kept running through the summer on an
  empty property, and winterising a property at altitude. Both are preservation costs.
• Homeowners' association assessments, which continue regardless.
• Cleaning, clearing, storing, moving and shipping contents.
• Travel on estate business at a reasonable rate — New Mexico distances are long and much of the
  state is remote.
• Bond premiums where bond was not waived.

Normally not claimable

• The representative's lost wages, meals near home, or personal spending.
• Costs run up for one beneficiary's convenience rather than the estate's.
• Improvements beyond preparing a property for sale as it stands.
• Anything without a receipt.

The rule that decides it

Open an estate bank account and run everything through it. Under informal, unsupervised
administration your own ledger is the only account anyone will ever see.

New Mexico's informal Probate Court route makes straightforward estates manageable for a family
member. A bank trust department or an attorney serving as personal representative earns its
cost in specific cases.

Consider a professional when

• The estate holds water rights, ranch land, or an interest in a Spanish or Mexican land
  grant. All three are New Mexico specialities, all three are frequently the most valuable and
  least understood assets in the estate, and none of them transfers like ordinary property.
• There are mineral or royalty interests, particularly in the Permian counties, where unclaimed
  proceeds and division orders need chasing.
• Community property characterisation is unclear — a second marriage, or a couple who moved
  here from a common law state and commingled property over decades.
• The matter is likely to become contested, which moves it from the county Probate Court to
  the District Court and changes the cost entirely.
• A beneficiary is a minor or incapacitated, so a trust runs for years.
• The named representative lives out of state and cannot deal with remote property in person.

What it costs

Corporate fiduciaries charge a negotiated percentage with a minimum annual fee. Attorneys
generally bill hourly. Because New Mexico prescribes no percentage, ask precisely what the basis
will be, in writing.

Middle ground

Appoint a family member, waive bond, and let them retain a New Mexico attorney at the estate's
expense — and where water rights or land grant interests are involved, a specialist to value them
properly rather than a general fiduciary.

A named representative who does not want the job can decline before appointment.