Small estate checker for New Mexico
Enter the date of death and what the person owned. The page adds what the state counts and compares it with the limit for that date. It does not decide anything.
The limits this checker uses
These come from the state's law as we checked it. The checker picks the row that matches the date of death you enter.
Collection of personal property by affidavit (Affidavit of Successor in Interest)
| Date of death | Limit |
|---|---|
On or after January 1, 2012 | $50,000 |
30 days after the death.
Also in New Mexico (not tested here)
These procedures have their own rules, so the checker does not test them. See the state page.
- Transfer of title to homestead to surviving spouse by affidavit (Affidavit of Surviving Spouse)
- Small estates summary administrative procedure
What counts toward the limit in New Mexico
Add up the value of the person's estate, wherever it is, and subtract liens and encumbrances. The courts' guide says a small estate does not include any real property, and that property passing by non-probate transfer (joint tenancy real estate, a recorded transfer on death deed, payable-on-death bank accounts, brokerage accounts with death beneficiaries) passes outside probate.
Law: NMSA 1978, 45-3-1201
In this state the total is counted after subtracting liens.
| Kind of property | How it is treated | Details |
|---|---|---|
Bank accounts in the person's name alone | Counts | Bank accounts in the person's name alone count. Law: NMSA 45-3-1201(A) |
Joint or payable-on-death (POD) bank accounts | Left out | Payable-on-death accounts pass to the named beneficiary as a non-probate transfer. |
Cars and other vehicles | Counts | Vehicles in the person's name count. The MVD also has a Transfer Without Probate process for heirs and spouses with no value limit. Law: NMSA 45-3-1201(A) |
Boats and mobile or manufactured homes | Counts | Boats (vessels) titled with the MVD count as personal property. Law: NMSA 45-3-1201(A); MVD-10013 |
Real estate in New Mexico | Has its own procedure | The courts' guide says a small estate does not include real property, and the affidavit cannot transfer real estate. A home passing to a surviving spouse can use the surviving spouse affidavit; other real estate needs probate. Law: NMSA 45-3-1201(C), 45-3-1205 |
Main home (primary residence) | Own procedure, up to $500,000 | A home the couple owned as community property that passes to the surviving spouse (no will, or a will leaving it to the spouse) can go to the spouse with the surviving spouse affidavit if its assessed full value is $500,000 or less. Other homes need probate. Law: NMSA 45-3-1205 |
Real estate in another state | Not clear | Ask the probate court how real estate in another state affects the small estate affidavit. Law: NMSA 45-3-1201(A)(1) |
Unpaid wages owed to the person | Counts | Money owed to the person, such as a final paycheck, counts. Law: NMSA 45-3-1201(A) |
Military pay owed to the person | Not clear | Ask the probate court how military pay owed to the person is treated. Law: NMSA 45-3-1201 |
Life insurance or retirement money paid to a named person | Left out | Accounts and benefits with a named death beneficiary pass outside probate. |
Life insurance or retirement money paid to the estate | Counts | Benefits payable to the person's estate count. Law: NMSA 45-3-1201(A) |
Property in a living trust | Not clear | Ask the probate court how trust property is treated. Law: NMSA 45-3-1201 |
Property owned jointly with right of survivorship | Left out | Real estate held as joint tenants passes to the surviving owner as a non-probate transfer. |
Property going to a surviving spouse | Not clear | New Mexico is a community property state. Ask the probate court how community property passing to the spouse is counted. Law: NMSA 45-3-1201, 45-3-1205 |
Stocks, bonds and brokerage accounts | Counts | Stocks in the person's name alone count; brokerage accounts with a death beneficiary pass outside probate. Law: NMSA 45-3-1201(A)-(B) |
Furniture, jewelry and other belongings | Counts | Belongings count at their value. Law: NMSA 45-3-1201(A) |
Source: Official page
Collection of personal property by affidavit (Affidavit of Successor in Interest)
A sworn statement you give to a bank, company or the Motor Vehicle Division, so they pay or deliver the person's property to you. It is not filed with a court. It cannot be used to transfer title to real estate.
- Limit
Up to $50,000 (deaths on or after January 1, 2012) Counted after subtracting liens (what is owed on the property).
Date of death Limit On or after January 1, 2012$50,000The entire estate, wherever it is, minus liens and encumbrances, cannot be worth more than $50,000.
- What counts
The value of the entire estate, wherever located, minus liens and encumbrances. The courts' self-help guide says a small estate does not include any real property.
- Waiting period
At least 30 days must have passed since the death.
- Who can use it
A person claiming to be the successor (the person entitled to the property under the will or state law), or someone acting for that person.
- Court or where to file
Not filed with a court. You give it to the bank, company or Motor Vehicle Division.
- Notary
The affidavit must be signed by the person entitled to the property and notarized.
- Papers to attach
- Certified copy of the death certificate (the MVD requires an original or certified copy)
- Steps
- Wait until at least 30 days after the death.
- Check that no one has applied to be personal representative in any state.
- Prepare the affidavit with the required statements (your county probate court can tell you where to get a form).
- Sign it in front of a notary.
- Give it to the bank or other holder; for a vehicle, use MVD form MVD-10013.
- Fee
No court filing fee, because the affidavit is not filed with a court.
- What the bank or holder must do
On a proper affidavit, the holder must pay the debt or deliver the property, and a transfer agent must re-register securities to the successor.
Law: NMSA 1978, 45-3-1201 (Laws 2011, ch. 124 (SB 146), sec. 50)
Source: Official page
Bank accounts after a death in New Mexico
A bank account with a payable-on-death beneficiary passes to that person without probate. For an account in the person's name alone, the successor can present the small estate affidavit after 30 days if the entire estate, minus liens, is worth no more than $50,000 and there is no real property.
Law: NMSA 45-3-1201
Source: Official page
Surviving spouse in New Mexico
New Mexico is a community property state. A home the couple owned as community property passes to the surviving spouse without probate when there is no will or the will leaves the person's share to the spouse; after six months the spouse can record an Affidavit of Surviving Spouse with the county clerk if the home's assessed full value is $500,000 or less. A spouse or legal heir can also transfer a vehicle at the MVD with a Certificate of Transfer Without Probate.
Law: NMSA 45-3-1205
Related pages
Free help in New Mexico
A court self-help center or a legal aid office can check whether the estate qualifies, free of charge or at low cost.
- LawHelpNewMexico (legal aid)
- State Bar of New Mexico: For the Public
- New Mexico Courts Self-Representation: Probate
- New Mexico Courts Self-Representation: Probate Forms
- NM District Court Self Help Guide: Probate
- LawHelp.org
- Legal Services Corporation (LSC) - Find legal aid
- Eldercare Locator · 1-800-677-1116
- Consumer Financial Protection Bureau (debt collection and mortgage complaints) · (855) 411-2372