New Mexico Petition for Probate
New Mexico offers an informal, no-hearing application on statewide forms 4B-301 and 4B-302, with a three-year outer limit and no authority until letters issue.
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Where are you in the probate process?
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Introduction
In New Mexico, the usual first step is an application rather than a petition. An informal application goes to the county Probate Court (uncontested matters) or the District Court, and formal and contested matters go to the District Court. Statewide forms exist: form 4B-302 asks for informal probate of a will and informal appointment of a personal representative, and form 4B-301 asks for informal appointment when there is no will. The court's form controls over any draft. Nobody has authority over estate assets until the court appoints them and letters issue; being named executor in a will does not by itself give that authority. Informal and formal probate or appointment generally may not begin more than three years after death, with exceptions (NMSA 1978, §45-3-108). Not every estate needs probate: assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside it, and a small-estate affidavit may fit some estates. No bond is required in informal proceedings except in listed cases. A will contest or a dispute over who should serve is a separate proceeding. Attorney review is available.
Key Things to Know
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Filing: an application for informal probate of will and for informal appointment of personal representative (form 4B-302), or an application for informal appointment of personal representative when there is no will (form 4B-301). It goes to the county Probate Court or the District Court; formal and contested matters go to the District Court. The court's form controls over any draft.
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No one has authority over estate assets until the court appoints a personal representative and letters issue (form 4B-306 for no will, form 4B-307 for a will). Being named as executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the creditor process runs.
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Deadline: informal and formal probate or appointment proceedings generally may not be started more than three years after death, with exceptions (NMSA 1978, §45-3-108(A)). After three years, if no proceeding occurred within the three years, an informal appointment in an intestate (no will) proceeding or a formal testacy or appointment proceeding may still be commenced, but the representative then has no right to possess estate assets beyond what is needed to confirm title in the successors. Ask the court clerk what is required of anyone holding the original will.
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Who may serve, in order: the person with priority under a probated will, including a nominee; a surviving spouse who is a devisee; other devisees; a surviving spouse; other heirs; and, 45 days after death, any creditor (§45-3-203(A)). A person under the age of majority, or one the court finds unsuitable in formal proceedings, is not qualified. Ask the court clerk about residency rules. Appointment is not guaranteed.
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Notice to heirs: not later than 30 days after appointment, the personal representative must give notice of the appointment to the heirs and devisees, by delivery or ordinary mail, and file a statement naming those notified (form 4B-401; §45-3-705). The applicant must also state whether any demand for notice has been filed.
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Creditors: publishing a notice to creditors once a week for three successive weeks in a county newspaper is permissive, not required (§45-3-801; form 4B-501). Claims must then be presented within four months after first publication, or for a creditor sent written notice, within the later of four months after the published notice or 60 days after mailing or delivery, or be forever barred.
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Bond and routing: no bond is required in informal proceedings except for a special administrator, a will that expressly requires bond, or when bond is required on an interested person's request (§45-3-603). Not every estate needs probate: a small-estate affidavit may fit some estates, as covered on DocDraft's small-estate-affidavit page, and informal probate has no dollar cap.
Key decisions before you file
Before you file a Petition for Probate in New Mexico, a few decisions shape the document: which option to choose and what each one means. The Petition for Probate guide walks through them.
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New Mexico Requirements for Petition for Probate
Informal Application on Statewide Forms
The informal filing is form 4B-302 (probate of will and appointment) or form 4B-301 (appointment, no will). Formal and contested matters are a petition in District Court. The court's form controls (NMSA 1978, §45-3-301).
County Probate Court or District Court
An informal application goes to the county Probate Court for uncontested matters or to the District Court. Formal and contested matters go to the District Court.
Three-Year Outer Limit
Informal and formal probate or appointment proceedings generally may not be commenced more than three years after death, with exceptions to confirm title in successors (NMSA 1978, §45-3-108(A)).
Application Contents
The application states the applicant's interest, the original will or why it is not filed, that no revocation is known, and whether a demand for notice has been filed (NMSA 1978, §§45-3-301, 45-3-204). Form 4B-301 also asks whether the decedent died more than 120 hours ago.
Order of Priority to Serve
Priority runs from the person under a probated will, to a devisee spouse, other devisees, a surviving spouse and other heirs, then any creditor 45 days after death. A person under the age of majority is not qualified (NMSA 1978, §45-3-203).
Notice of Appointment to Heirs and Devisees
Not later than 30 days after appointment, the representative gives notice to the heirs and devisees and files a statement naming those notified (NMSA 1978, §45-3-705; form 4B-401).
Optional Creditor Notice
The representative may publish notice once a week for three successive weeks. Claims are barred unless presented within four months after first publication, or the later period for a creditor sent written notice (NMSA 1978, §45-3-801).
No Bond by Default in Informal Proceedings
No bond is required informally except for a special administrator, a will expressly requiring bond, or on an interested person's request (NMSA 1978, §45-3-603).
Acceptance and Letters
After appointment the representative accepts the appointment (form 4B-305) and letters issue (form 4B-306 for no will, form 4B-307 for a will). Authority begins when letters issue.