New Mexico Probate and Intestate Succession: What Happens Without a Will (2026)

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?

In practice, no New Mexico estate tax is owed, but the reason is not that the law was repealed. New Mexico's Estate Tax Act, NMSA 1978 §§ 7-7-1 to 7-7-12, is still in the state code, and the New Mexico Taxation and Revenue Department still describes residents and nonresidents as subject to it. The Act imposes a tax in an amount equal to the federal credit on the transfer of a resident's net estate under NMSA 1978 § 7-7-3, and NMSA 1978 § 7-7-2(D) defines that federal credit as the credit for state death taxes allowed by Section 2011 of the Internal Revenue Code. That federal credit no longer exists: 26 U.S.C. § 2011 was repealed by Pub. L. 113-295 in December 2014. With nothing left to peg to, the New Mexico calculation produces zero, so the statute stands but imposes no tax. 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.

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Last updated: 2026-07-16. Figures and statutes cited reflect their in-force version as of 2026-07-16.

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