Detailed Answer

When a person dies intestate (without a valid will) in New Mexico, the court appoints a personal representative (often called an “administrator”) to collect assets, pay debts, and distribute property to heirs. One common procedural requirement is a fiduciary bond (sometimes called an executor’s or administrator’s bond). A bond is insurance that protects the estate and its beneficiaries if the personal representative mismanages estate property.

Under New Mexico probate practice and the state Probate Code, the court generally requires a personal representative to give a bond. However, the court can dispense with or reduce the bond amount in certain situations. A decedent’s heirs or interested persons can agree in writing to waive the bond, but the court must approve that waiver before it is treated as effective. The judge has discretion to require a bond even when all heirs request waiver if the judge believes a bond is necessary to protect the estate or creditors.

Practical points under New Mexico law:

• The court will usually ask whether a bond has been posted or whether a waiver has been filed and approved as part of the appointment process.
• If all heirs who are legally competent and interested in the estate sign a written waiver of bond and submit it to the probate court, many courts will accept the waiver and dispense with the bond. The court must approve the waiver on the record or by order.
• The court may refuse to accept a waiver and still require a bond if any of these factors exist: concerns about the proposed administrator’s honesty or ability, substantial creditor claims, estate complexity, lack of local ties, or if the proposed administrator is a nonresident.
• Where a full bond is not required, the court sometimes requires a smaller bond (a reduced bond) or other security (e.g., property as security) instead.
• Some small estates qualify for simplified administration procedures or affidavits that avoid formal probate and bond requirements. Whether a small estate process applies will depend on the value and type of assets.

For the controlling statutory framework, see the New Mexico Probate Code (NMSA 1978, Chapter 45). The New Mexico Judicial Branch provides practical probate information and forms, and the statutes and court rules describe the court’s authority to require or dispense with bond. For general reference, see the New Mexico Judicial Branch probate information: https://www.nmcourts.gov/probate/, and consult the New Mexico statutes on probate (NMSA Ch. 45) via the New Mexico legislative or code resources.

If the heirs want to waive bond:

1. Get written waivers signed by every person who has a legal interest in the estate and who is legally competent to sign (usually adult heirs and surviving spouse). The court will want clear, signed documents.
2. File the waivers with the probate court when you file the petition for appointment, or promptly afterward.
3. Ask the judge to approve the waiver in the appointment order. The judge may hold a hearing or approve by order after reviewing the file.

Because the judge retains discretion, heirs should not assume a waiver will be accepted in every case. If the court requires a bond and the appointed administrator cannot post one personally, the court can require a corporate surety bond (purchased from a bonding company). The cost depends on the bond amount and the administrator’s credit.

If you prefer not to post a bond or purchase surety, consider these alternatives: ask the court for a reduced bond, ask a co-administrator who can post bond to serve, or pursue a small estate procedure if the estate qualifies.

Helpful Hints

• Before signing a waiver, ask for a clear explanation of what a bond protects — it insures heirs and creditors against theft, loss, or mismanagement by the personal representative.
• Get waivers in writing, dated, and signed by all adult heirs. File them with the probate court and attach them to the appointment petition.
• Talk to the probate clerk about local forms and the court’s typical practice on bond waivers — practice varies by county and judge.
• If the estate has significant debts, business interests, or difficult assets (real estate, pensions, out-of-state property), expect the court to be more likely to require a bond.
• Consider buying a surety bond from a reputable bonding company if the court requires one; rates vary by amount and applicant creditworthiness.
• Check whether the estate qualifies for a small estate affidavit or simplified administration — that may let you avoid bond and full probate entirely.
• If any heir is a minor, incapacitated, or unreachable, the court may require bond regardless of other waivers.
• Keep detailed records and accountings. Even when there’s no bond, the personal representative has fiduciary duties and can be held personally liable for breaches.
• When in doubt, consult an attorney familiar with New Mexico probate practice to review waivers, prepare filings, and advise whether waiver is likely to be approved in your county.