Do All Wills Have to Go Through Probate in New Mexico?

If someone passes away and leaves a will, you might wonder: Does that will always have to go through a process called probate? In New Mexico, the answer isn’t a simple yes or no. It depends on a few things, like what the person owned and how they set things up before they died. Let’s break it down in a way that’s easy to understand.

What Is Probate Anyway?

Probate is like a legal checkpoint. It’s when a court makes sure a will is real and follows the rules. The court also helps figure out who gets the person’s stuff—like their house, car, or money—based on what the will says. Someone called a “personal representative” (kind of like a manager) is put in charge of handling everything. They pay any debts the person owed, and then they give out what’s left to the people named in the will.

In New Mexico, probate can take a few months if everything goes smoothly. But if there’s a fight over the will or if things get tricky, it could take longer—sometimes even a couple of years.

Do All Wills Need Probate?

Not every will has to go through probate in New Mexico. Here’s why:

1. Small Estates Don’t Always Need It

   If the total value of what the person owned (their “estate”) is $50,000 or less, you might not need probate. Instead, you can use a simple form called an affidavit to claim their stuff. This works for things like bank accounts or personal items, but not for real property. You should have a copy of the death certificate, and it has to be at least 30 days after the person passed away.

2. Some Things Skip Probate

   Not everything a person owns goes through probate, even if they have a will. For example:

• If they owned a house or bank account with someone else (like a spouse) as “joint tenants,” it goes straight to the other owner.

• If they named a person to get their life insurance or retirement account after they die, that money skips probate too.

• If they put their assets in a trust (a special legal vehicle), it doesn’t need probate because the trust already says who gets it.

These are called “non-probate assets,” and they pass directly to people without a probate court's help. So, if all the person’s stuff is set up this way, the will might not need probate at all.

3. But Big Estates Usually Do

   If the person owned things worth more than $50,000—like a house in their name alone or a big bank account with no co-owner or named beneficiary—then a will usually has to go through probate. The court needs to step in to make sure everything is handled in a legal manner.

Why Does This Matter?

Probate isn’t always a bad thing, but it can take time and cost money. There are court fees, and you most likely need a lawyer to help. Plus, it’s public, so anyone can see what’s in the will. That’s why some people try to avoid it by planning ahead—like putting their stuff in a trust or naming beneficiaries on their accounts.

What Should You Do?

If someone dies with a will in New Mexico, the first step is to figure out what they owned and how they owned it. Did they have a house by themselves? A bank account with no beneficiary? If so, probate might be needed. But if everything is set up to pass directly to someone else, you might not have to deal with the court.

Talking to a qualified lawyer will help. He or she can look at the situation and tell you if probate is necessary or if there’s an easier way. New Mexico’s rules are pretty friendly compared to some states, but it’s still smart to get advice.

The Bottom Line

Not all wills in New Mexico have to go through probate. It depends on how much the person owned and how they planned things out. Small estates and assets that are already legally designated for someone else can skip it. But for bigger estates, probate is usually the way to go. Knowing this can save you time and stress when the time comes.

Planning ahead can make things easier for the people you leave behind. A will is a great start, but thinking about trusts or beneficiaries could keep your stuff out of probate altogether. Either way, it’s all about making sure your wishes are followed!

References

1. New Mexico Probate Code - NMSA 1978, Sections 45-1-101 et seq. (This is the state law that explains how probate works in New Mexico.)

2. Small Estate Affidavit Rule - NMSA 1978, Section 45-3-1201 (This law says estates worth $50,000 or less can avoid probate with an affidavit.)

3. Non-Probate Transfers - NMSA 1978, Section 45-6-101 (This covers things like joint ownership and beneficiary designations that skip probate.)

4. General Legal Guidance - Information from the New Mexico Courts website (nmcourts.gov) and common estate planning practices.