Detailed Answer
Under New Mexico’s Small Estate Act (NMSA 1978, §§ 45-3-701 to 45-3-706), you can transfer certain assets without formal probate if the total value of personal property subject to probate does not exceed $100,000. Follow these steps to distribute assets using a small estate affidavit:
Step 1: Confirm Eligibility
- Total personal property (bank accounts, vehicles, household goods) subject to probate does not exceed $100,000.
- No formal probate or guardianship proceeding is pending for the estate.
- The process covers only personal property; real estate transfers require a separate affidavit under NMSA 45-3-704.
See NMSA 45-3-703 for full criteria: https://www.nmlegis.gov/Laws/Statutes/45/3/703.
Step 2: Gather Required Documents
- Certified copy of the decedent’s death certificate.
- Itemized list of assets and estimated values.
- Names, addresses, and relationship of all heirs.
- Copies of any notices sent to known creditors.
Step 3: Prepare the Small Estate Affidavit
Draft an affidavit that states the decedent’s name, date of death, residence, asset list, and heir information. Include a declaration that no probate administration is pending and that the estate meets the small estate limits under NMSA 45-3-703.
Step 4: File with the Court
File the original affidavit with the district court clerk in the county where the decedent resided. If you need to transfer real estate, file a separate Certificate of Transfer under NMSA 45-3-704: https://www.nmlegis.gov/Laws/Statutes/45/3/704.
Step 5: Notify Interested Parties
Serve a copy of the affidavit on all heirs and known creditors. New Mexico law gives creditors 30 days from service to present claims. Send notices by certified mail with return receipt requested.
Step 6: Distribute Assets
After 30 days, if no valid creditor claims arise, deliver assets to each heir according to New Mexico’s intestate succession rules (NMSA 45-2-102). Obtain signed receipts or releases to confirm each transfer.
Key Points to Remember
- The affidavit covers only personal property under the $100,000 threshold.
- Creditors have 30 days from notice to file claims.
- If someone has opened a probate for a will, you cannot use this process.
Disclaimer: This article provides general information on New Mexico law and is not legal advice. Consult an attorney for advice specific to your situation.
Helpful Hints
- Verify asset values carefully to stay within the limit.
- Use certified death certificates—courts often reject uncertified copies.
- Keep complete copies of all filed documents for your records.
- Send creditor notices promptly to avoid delays.
- Consider consulting an attorney if the estate involves complex assets or debts.