FastCounsel

Disclaimer: This article is for educational purposes only and does not constitute legal advice.

Detailed Answer

Under New Mexico law, only the decedent’s personal representative may bring a wrongful death action. The New Mexico Wrongful Death Act (NMSA 1978, Section 41-2-1) grants certain survivors the right to recover damages when a person dies due to another’s negligence. To serve as personal representative, you must open an estate—either through full probate or a small estate process.

Full probate starts when you file a petition in district court where the decedent resided. The court issues letters testamentary (if there’s a will) or letters of administration (if there isn’t). Once appointed, the personal representative can pursue the wrongful death claim on behalf of the estate.

If the estate’s value (excluding homestead and certain exemptions) is $50,000 or less, you may qualify for a simplified small estate affidavit under NMSA 1978, Section 45-3-112. This streamlined process lets you collect assets and act as personal representative without full probate, and then file the wrongful death suit.

Note the statute of limitations: you generally must file a wrongful death claim within three years of the decedent’s death (NMSA 1978, Section 37-1-8). Failing to appoint a personal representative before that deadline can bar your claim.

NMSA 1978, § 41-2-1 (Wrongful Death Act)
NMSA 1978, § 45-3-112 (Small Estates)
NMSA 1978, § 37-1-8 (Statute of Limitations)

Helpful Hints

• File the probate petition in the county where the decedent lived.
• Prepare an accurate inventory of assets, debts and beneficiaries.
• Confirm whether the estate qualifies for the small estate affidavit to save time and fees.
• Track all deadlines: wrongful death claims must be filed within three years of death.
• Consider consulting a New Mexico attorney for both probate and wrongful death steps.