Understanding Probate Administration and Authority to Sell Estate Property in New Mexico

Disclaimer: This article provides general information about New Mexico probate procedures. It is not legal advice. For guidance tailored to your situation, consult a licensed attorney.

Detailed answer — how to finish probate when a will looks outdated and you need authority to sell property

This section explains, step-by-step, what typically must happen in New Mexico when the named will appears old, uncertain, or out of date and the estate includes real property that likely must be sold. I assume no prior legal knowledge. Exact steps may vary depending on facts (for example, whether there are multiple wills, whether the decedent owned property jointly, or whether there are unpaid debts).

1. Confirm whether the will is the controlling will

First, determine if the written will you have is the decedent’s valid and controlling will. New Mexico probate law requires a writing that meets formal execution rules to be admitted. If a later will exists, it may revoke an older will. If the decedent made changes informally (handwritten notes), those changes may or may not be valid.

New Mexico probate statutes and local court rules set the tests for admissibility. For general statutory information see the New Mexico probate code (NMSA Chapter 45): https://www.nmlegis.gov/Legislation/Statutes/Chapter/45. For court-level guidance and forms see New Mexico Courts’ probate help: https://www.nmcourts.gov/self-help/probate/.

2. Open probate and ask the court to appoint a personal representative (PR)

If probate is necessary (for example, the decedent owned property solely in their name), someone must open an estate case in the appropriate New Mexico district court and ask to be appointed the personal representative (formerly called executor/administrator). The PR has the authority—subject to the will and court order—to collect assets, pay debts, and administer the estate.

When the will seems outdated, the court will consider whether it is still valid or whether another instrument or facts revoke or supersede it. If multiple documents exist, petitioners typically file the will they think is operative and provide facts about other documents or lack of later wills.

3. Give required notice and locate heirs and creditors

Once probate is opened, New Mexico law requires notice to certain heirs and creditors and publication for unknown creditors. Those notices create deadlines for objections. Potential buyers and title companies will want to see that required notices were given before they accept a deed from the estate.

4. Inventory, appraisal, and identifying real property title issues

The PR must inventory estate assets, including real property, and often must obtain appraisals. Confirm how the property is titled: sole ownership, tenancy by the entirety (rare), joint tenancy with right of survivorship, or in a trust. If the property passed outside probate (joint tenancy, POD, or trust), the PR may not need authority to sell it.

5. Authority to sell real estate — general rules

In New Mexico, a PR usually has the authority to sell estate real property, but how that authority is established depends on circumstances:

• If the will expressly grants the PR power to sell real estate, the PR may sell under that authority after appointment and required notices.
• If the will is silent, state probate rules or the court can authorize the sale. The PR typically petitions the court for authority to sell, describing the proposed sale and explaining why it benefits the estate (e.g., to pay debts or distribute proceeds).
• If heirs object (for example, because they claim the will is invalid or the property should pass outside probate), the court may hold a hearing before approving a sale.

Practical steps to obtain authority to sell:

1. File a petition asking the court for authority to sell estate real property.
2. Provide a proposed purchase contract or terms, appraisal, and proof of notice to heirs and interested parties.
3. If no objections are timely filed, ask the court for an order approving the sale and authorizing the PR to sign the deed.
4. If objections arise, expect a hearing; the court will decide whether sale is in the estate’s best interest.

6. Sales that require specific court approval

Some situations require express court approval rather than relying on the PR’s general powers—for example, sales to the PR or to a beneficiary, or sales before final distribution. Title companies often require a court order or court-confirmed sale before insuring the buyer’s title when the seller is an estate.

7. Clearing title and closing the sale

Before closing, resolve liens, mortgages, unpaid taxes, and creditor claims. Use sale proceeds to pay estate debts and expenses. After closing, file an accounting with the court, distribute remaining proceeds according to the will (or, if no valid will exists, under New Mexico intestacy rules), and move to close the estate.

8. When the will appears outdated: possible complications

If the will looks outdated because circumstances changed (marriage, divorce, later will, handwritten changes, or the will names an executor who cannot serve), watch for these issues:

• Claims that a later valid will revokes the older will.
• Claims that the decedent lacked capacity when signing a document or that someone improperly influenced them (undue influence).
• Heirs asserting the property passed outside probate (joint tenancy or trust).

The court resolves these disputes. The PR should preserve records and evidence (original will, copies, correspondence, witness information) and notify interested parties promptly.

9. Timeframe and costs

How long probate takes depends on estate complexity, creditor claims, objections, and court scheduling. Simple probates can close in months; contested or complex administrations can take a year or more. Expect filing fees, publication costs, appraisal fees, and possible attorney fees; the PR’s compensation is subject to rules and court approval.

10. Example hypothetical (illustrative)

Hypothetical: Alice dies owning a house solely in her name and a will dated 2005 leaving her property to her sister. In 2018 Alice wrote “leave property to my brother” on a copy of the will but never signed it. No joint deed or trust exists. The sister files the 2005 will for probate. Because the 2018 note isn’t a properly executed later will, the court will likely admit the 2005 will unless someone proves the 2018 note was intended as a valid amendment. The personal representative appointed under the 2005 will should inventory the house, obtain an appraisal, give notice to heirs and creditors, and ask the court for authority to sell the house if sale is needed to pay debts or distribute proceeds. If a buyer wants a guaranteed title, the PR will likely need a court order approving the sale or a court-confirmed sale and a full record that notice was given and no valid objection blocks the sale.

Statutory sources and court information (New Mexico)

Primary New Mexico probate laws are codified in the New Mexico Statutes (see Chapter 45). For statutory text and related court rules, start here:

• New Mexico Statutes (probate code, Chapter 45): https://www.nmlegis.gov/Legislation/Statutes/Chapter/45
• New Mexico Courts—probate self-help center and forms: https://www.nmcourts.gov/self-help/probate/

When you should consult a lawyer

Consider hiring an attorney if any of the following apply:

• There is a dispute about which will is valid or multiple wills exist.
• Heirs or creditors may contest the PR’s authority or the proposed sale.
• The estate owns real property and the proposed buyer or title company asks for court confirmation.
• The estate has substantial debts, complex assets, or tax issues.

Helpful Hints

• Locate the original will. Courts prefer the original document; copies create extra steps.
• Gather title documents (deed), mortgage statements, property tax bills, and insurance policies early.
• Get a recent market appraisal before asking the court to approve a sale; buyers and courts expect a reasonable valuation.
• Provide clear notice to all likely heirs and creditors—lack of proper notice can delay or undo a sale.
• Ask the buyer or title company early what documentation they require; they often want a court order or certificate of appointment before insuring title from an estate sale.
• If an heir claims a later informal change to a will, preserve the document and witness contact information and raise the claim early—delays make proof harder.
• Keep good records of all estate expenses and distributions; you will need these for the court accounting and to avoid disputes.
• If you expect a quick sale and there are no disputes, ask the court for authority to sell and for a prompt hearing date; uncontested matters move faster.

If you want, provide a short summary of your facts (ownership documents, copies of the will(s), whether any mortgage or lien exists, and whether anyone is contesting the will). With those details, an attorney can advise next steps and document preparation.