How to Prepare an Heirship Affidavit in New Mexico

Disclaimer: This article is for educational purposes only. It does not provide legal advice. Consult a qualified attorney to address your specific situation.

Detailed Answer

In New Mexico, an affidavit of heirship helps surviving family members establish ownership of real property or collect small estate assets when someone dies without a will (intestate) and no formal probate is opened.

1. Confirm Eligibility

• Ensure the decedent died owning only personal property not exceeding the small‐estate threshold (currently $50,000) or real property that requires clear title transfer.
• No probate proceeding should be underway in any county.

2. Identify Heirs and Next of Kin

• Review family records, birth certificates and marriage licenses.
• Determine heirs under New Mexico’s intestate succession statutes (NMSA 1978, §45-2-102: Intestate Succession).

3. Gather Necessary Documents

• Certified copy of the decedent’s death certificate.
• Copies of deeds showing real property ownership.
• Affidavits or depositions from two disinterested witnesses who can attest to the family relationships and lack of a will.

4. Draft the Affidavit

The affidavit must include:

• Decedent’s full name, date of death and last known address.
• List of all known heirs with their full names, relationships and addresses.
• Description of property to be transferred (legal description for real estate or personal property list).
• Statement that no probate is pending or was administered.
• Attestation by two disinterested witnesses under oath.
• Notary acknowledgment with official seal and signature.

5. Notarization and Recording

• Have the decedent’s heirs and both witnesses sign the affidavit before a New Mexico notary public.
• File the notarized affidavit with the county clerk (or county clerk and recorder) in the county where the real property lies. Record under NMSA 1978, §14-2-1: Recording of Instruments.
• Pay the required recording fees.

6. Using the Affidavit

Once recorded, the affidavit serves as evidence of title or right to possession of estate assets. Third parties (such as title companies or financial institutions) typically accept a properly executed and recorded heirship affidavit in lieu of probate.

Helpful Hints

• Start early: Deadlines may apply for small‐estate affidavits (see NMSA 1978, §45-3-401: Affidavit for Collection of Small Estates).
• Maintain clear family records to simplify heir identification.
• Use a standard affidavit template adapted for New Mexico practice.
• Keep multiple certified copies of the recorded affidavit for each heir.
• Verify county clerk requirements—some counties have local forms or cover sheets.
• Consider a title search to ensure no undisclosed liens or encumbrances.
• Consult an attorney or title professional for complex estates or real property transfers.