Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed attorney in New Mexico for guidance on your specific situation.
Detailed Answer
When someone dies owning property in more than one county or even outside New Mexico, the executor or personal representative must ensure lawful transfer of all assets. Here’s how to proceed under New Mexico law:
1. Determine the Primary Probate Venue
Under NMSA 1978, Section 45-3-103, venue for probate lies in the county where the decedent resided at death or where real property is located. If real estate is in a county different from the decedent’s residence, any interested person may file in either county. Learn more: NMSA 45-3-103.
2. Open the Main Probate Estate
File a Petition for Probate in the appropriate New Mexico district court. The court issues Letters Testamentary or Letters of Administration, empowering the representative to collect assets, pay debts, and distribute property. See NMSA 45-3-201.
3. Ancillary Probate for Out-of-State Real Property
If the decedent owned real property outside New Mexico, New Mexico Letters may not transfer that asset. You must open an ancillary probate in the state where the property sits. Use the primary Letters to demonstrate authority. Each state has its own ancillary probate rules.
4. Inter-County Real Property Within New Mexico
For real estate in multiple New Mexico counties, the same Letters are valid statewide. Record certified copies of the Letters in each county’s land records office before selling or transferring title. No separate probate is needed.
5. Small Estate Affidavit Procedure
If the total personal property in New Mexico is valued at $75,000 or less and no real estate is involved, use the simplified Small Estate Affidavit under NMSA 1978, Section 45-3-1301. File in the decedent’s county of residence. This avoids full probate. Link: NMSA 45-3-1301.
6. Coordination with Creditors and Tax Authorities
Publish notice to creditors in each county’s official newspaper where probate is filed (NMSA 45-3-804). File estate tax returns if assets exceed filing thresholds. Notify the New Mexico Taxation and Revenue Department and any out-of-state agencies.
Helpful Hints
- Gather deeds, account statements, and policy documents early to identify multi-jurisdiction assets.
- Consult an attorney licensed in each state where real property is located for ancillary proceedings.
- Keep certified copies of Letters of Administration—courts often require originals to be sealed.
- Use a checklist to track deadlines for notices, creditor claims, and tax filings.
- Consider hiring a local title company or closing agent to handle out-of-county real estate transfers.