Detailed Answer
Under New Mexico law, certain real estate can pass automatically at death without probate, while other property must go through probate under your will. Understanding which assets bypass probate can streamline your estate planning and help you know why some assets still require court involvement.
1. When Real Property Passes Automatically
- Joint Tenancy with Right of Survivorship: If you hold property as joint tenants, the surviving owner automatically inherits your share at death. No probate is required.
- Community Property with Right of Survivorship: Married couples can title property as community property with right of survivorship. Surviving spouses gain full ownership at death by operation of law.
- Transfer on Death Deed (TOD): New Mexico’s Real Property Transfer on Death Act (NMSA 1978, §45-5-501 to 509) lets you record a TOD deed naming a beneficiary. The beneficiary receives the property automatically when you die. (See §45-5-502 NMSA: https://law.justia.com/codes/new-mexico/2018/chapter-45/article-5/section-45-5-502/.)
2. Why Some Property Requires Probate
Any real estate you own solely in your name without a survivorship arrangement or beneficiary designation must go through probate. Probate serves to:
- Validate your will under the New Mexico Uniform Probate Code.
- Authorize the personal representative to pay debts and distribute assets.
- Transfer clear title to the beneficiaries named in your will.
New Mexico’s probate process begins by filing a Petition for Probate in district court. The court issues Letters Testamentary to your personal representative, granting authority to manage and distribute estate property (See NMSA 1978, §45-3-301: https://law.justia.com/codes/new-mexico/2018/chapter-45/article-3/section-45-3-301/).
3. Interaction of Probate and Non-Probate Transfers
Even if part of your estate avoids probate, assets subject to probate still need administration. For example, you might own a house in joint tenancy (non-probate) and a vacation cabin in your sole name (probate). The joint tenancy property passes automatically; the cabin goes through probate under your will.
Failing to probate a will for probate assets can leave title in limbo, frustrate creditors, and delay beneficiary distributions.
Disclaimer
This article provides general information under New Mexico law. It does not constitute legal advice. Consult a qualified attorney for advice on your specific situation.
Helpful Hints
- Review your property deeds to confirm titling arrangements.
- Use a transfer-on-death deed for property you want to bypass probate.
- Consult an estate planning attorney to balance probate and non-probate transfers.
- File probate promptly to avoid penalties and creditor claims.
- Keep beneficiary designations on retirement and bank accounts up to date.