Do you have to open probate if someone dies without a will in New Mexico?

Short answer: Not always. If a person dies without a will (intestate) in New Mexico, their estate may require probate administration to transfer title to assets and pay debts — but smaller estates and certain assets pass outside probate by operation of law. Whether you must open a full probate case depends on what assets the decedent owned, how those assets were titled, and whether they qualify for a simplified procedure.

Detailed Answer — How New Mexico law treats intestacy and when probate is required

When someone dies without a will in New Mexico, the Uniform Probate Code as adopted in New Mexico governs how the estate is distributed to heirs by intestate succession and how creditors are paid. The probate court supervises that process when assets need to be collected, debts paid, and title transferred to heirs.

Key concepts to understand:

• Intestate succession determines heirs. If there is no will, state law sets who inherits (spouse, children, parents, siblings, etc.). This determines who is entitled to the decedent’s probate assets.
• Probate is necessary when probate assets exist that must be transferred or when a creditor’s claim must be administered by the court. Probate assets are typically property owned solely in the decedent’s name (real estate titled solely in the decedent’s name, bank accounts in decedent’s name without a pay-on-death beneficiary, personal property, etc.).
• Some property passes outside probate. Property with a beneficiary designation (life insurance, IRAs/401(k)s), property held jointly with rights of survivorship, and assets with a transfer-on-death (TOD) designation generally pass directly to the named beneficiary or surviving co-owner and do not require probate.

When you likely need to open probate in New Mexico

Open probate when any of the following apply:

• The decedent owned real estate solely in their name and title must be retitled or sold.
• The decedent had bank, investment, or other accounts in their name without beneficiary designations sufficient to transfer funds automatically.
• The heirs need the court to appoint a personal representative (formerly called executor) to gather assets, pay creditors, and distribute property under intestacy rules.
• Creditors must be notified and claims resolved through the estate.

When you might avoid probate or use a simplified process

• Nonprobate transfers: Joint tenancy assets and beneficiary-designated accounts (life insurance, retirement plans, payable-on-death accounts) usually transfer outside probate.
• Small estate procedures: Many states offer an affidavit or summary administration to collect personal property when the estate value falls below a statutory limit. New Mexico provides simplified procedures for small estates and summary administration in limited situations. These procedures let a successor collect assets without a formal full probate administration. Check the probate clerk or court rules in the county where the decedent lived for specific thresholds and forms.
• Property held in trust: Assets in a valid revocable trust pass by the trust terms and do not go through probate.

Practical steps to determine whether probate is required

1. Make an inventory: list real property, bank/investment accounts, vehicles, life insurance, retirement accounts, and personal property.
2. Check title and beneficiary designations: look for joint owners, TOD/POD registrations, and named beneficiaries.
3. Estimate value: determine whether the estate likely qualifies for a small estate/summary process.
4. Contact the probate court clerk in the county where the decedent lived to ask about small estate affidavits, summary administration, and required forms. The New Mexico court website offers general probate guidance: https://www.nmcourts.gov/self-help/probate/.
5. If there are real estate transfers, unresolved creditor claims, or disputes among heirs, you will likely need to open a probate case.

Where New Mexico law and forms live

New Mexico statutes and court resources govern probate and intestacy. For official statutes and to search specific probate code sections, use the New Mexico Legislature site: https://www.nmlegis.gov/. For practical filing information, local forms, and procedural guidance, see the New Mexico Courts self-help probate pages here: https://www.nmcourts.gov/self-help/probate/.

When to consult an attorney

Consult a probate attorney if the estate includes real estate, the asset mix is complex, there are tax issues, contested heirship, or if creditors or disputes may arise. An attorney can advise whether a small estate affidavit or summary administration is available and can prepare and file the necessary court documents.

Disclaimer

This article is for general information only and is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a qualified New Mexico attorney who handles probate and estate matters.

Helpful Hints

• Start by gathering the decedent’s last bills, bank statements, titles, and account statements — these documents show what is probate vs. nonprobate.
• Look for beneficiary designations and joint-account paperwork before assuming probate is required.
• Contact the county probate clerk early — clerks can confirm whether a small estate affidavit or summary administration is appropriate.
• If real estate is involved, probate or a court order is almost always needed to clear title unless property passes by survivorship or trust.
• Be mindful of creditor deadlines. If you delay, you might lose the ability to handle claims under court supervision.
• When in doubt, get a short consultation with a probate attorney. A quick review can save time and money.