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Living trust or probate

New Mexico

A funded revocable living trust lets the successor trustee handle assets titled to the trustee. Property left in your own name can still be a probate matter in New Mexico.

CourtProbate Court

Where the estate is opened.

Small-estate figure$50,000

Only if the statute's conditions are met. Read the section below.

TaxNo current estate tax

See the tax section for the exemption or the repeal.

SpousesCommunity property

See the property section for the statute's words.

Living trust or probate

A revocable living trust holds assets you title in the trustee's name. You can serve as trustee while you are able.

At death, the successor trustee handles those assets. Property you leave in your own name can still go through the probate court. A pour-over will sends leftover assets into the trust, and those leftover assets may pass through probate first.

The probate path

In New Mexico, the estate is opened in the Probate Court.

The New Mexico courts self-help guide says a probate case is filed with the Probate Court in the county where the decedent was domiciled at death, and that some cases must instead be filed in District Court. If there is a will, the original will and a certified death certificate are submitted and the court appoints the person designated in the will as personal representative. If there is no will, a spouse has the highest priority for appointment, followed by the decedent's children, and a person seeking appointment must have written consent of others with the same or higher priority. The personal representative notifies heirs, gathers and inventories assets, pays debts to the extent funds are available, distributes under the will or intestacy laws, and closes by a sworn statement. The guide says the case must be open for a minimum of 3 months before it can be closed.

Source: New Mexico District Court Self Help Guide, Probate

Fees

In New Mexico, probate compensation is a statutory commission.

The same court guide says the personal representative is entitled to fair compensation from the estate for the time spent administering the estate and cites NMSA 1978 section 45-3-719. The guide says the personal representative should keep a written record of tasks and time. The opened guide does not print a percentage schedule, and the text of section 45-3-719 itself was not opened.

Source: New Mexico District Court Self Help Guide, Probate

Calculator

Probate cost

The result is the statutory schedule on this page applied to the amount you enter.

a figure you want to compare with the small-estate amount on this page

Small estate

New Mexico's small-estate figure on this page is $50,000 when the statute's conditions are met.

The New Mexico Taxation and Revenue Department Motor Vehicle Division affidavit of claiming successor, made pursuant to section 45-3-1201, states that the entire estate of the decedent, less liens and encumbrances, is not worth over $50,000; that thirty days have elapsed since the death; that no application or petition for appointment of a personal representative is pending or has been granted in any jurisdiction; and that the claiming successor is entitled to the transfer. The courts guide describes a small estate as one where the total estate is worth less than $50,000 and does not include real property, and says an affidavit of successor in interest may be used if at least 30 days have passed and no probate has been filed. The guide is dated July 2016 and says it may not be current.

Source: New Mexico MVD Affidavit of Claiming Successor, section 45-3-1201

Estate or inheritance tax

New Mexico has no current estate tax on the page linked below.

The New Mexico Taxation and Revenue Department says New Mexico's estate tax is phased out due to federal tax law changes as of January 1, 2005, and that if a federal Form 706 must be filed, a New Mexico estate tax return should also be filed so the department can issue a certificate of no tax due. The same page says New Mexico does not impose an inheritance tax.

Source: New Mexico Taxation and Revenue Department, Estate, Trust, and Fiduciary Income Tax

Property of spouses

Spouses in New Mexico hold community property.

A New Mexico Court of Appeals opinion quotes NMSA 1978 section 40-3-8(B) as defining community property as property acquired by either or both spouses during marriage which is not separate property. The same opinion quotes section 40-3-8(A)(1) as defining separate property to include property acquired by either spouse before marriage.

Source: New Mexico Court of Appeals, Pozen v. Fickler, No. A-1-CA-37682

Questions

The answers use the same statute and court pages as the sections above.

Does a living trust avoid probate in New Mexico?

A revocable living trust holds the assets you title in the trustee's name. The successor trustee handles those assets. Property still titled in your own name can be a probate matter. A pour-over will can send leftover assets into the trust, and those leftover assets may still pass through probate first.

What is the small-estate procedure in New Mexico?

The New Mexico Taxation and Revenue Department Motor Vehicle Division affidavit of claiming successor, made pursuant to section 45-3-1201, states that the entire estate of the decedent, less liens and encumbrances, is not worth over $50,000; that thirty days have elapsed since the death; that no application or petition for appointment of a personal representative is pending or has been granted in any jurisdiction; and that the claiming successor is entitled to the transfer. The courts guide describes a small estate as one where the total estate is worth less than $50,000 and does not include real property, and says an affidavit of successor in interest may be used if at least 30 days have passed and no probate has been filed. The guide is dated July 2016 and says it may not be current.

How are probate fees set in New Mexico?

The same court guide says the personal representative is entitled to fair compensation from the estate for the time spent administering the estate and cites NMSA 1978 section 45-3-719. The guide says the personal representative should keep a written record of tasks and time. The opened guide does not print a percentage schedule, and the text of section 45-3-719 itself was not opened.

Does New Mexico tax an estate or an inheritance?

The New Mexico Taxation and Revenue Department says New Mexico's estate tax is phased out due to federal tax law changes as of January 1, 2005, and that if a federal Form 706 must be filed, a New Mexico estate tax return should also be filed so the department can issue a certificate of no tax due. The same page says New Mexico does not impose an inheritance tax.

How does New Mexico treat property of spouses?

A New Mexico Court of Appeals opinion quotes NMSA 1978 section 40-3-8(B) as defining community property as property acquired by either or both spouses during marriage which is not separate property. The same opinion quotes section 40-3-8(A)(1) as defining separate property to include property acquired by either spouse before marriage.

Sources

These are the statute and court pages used above.

TaxFreeTrusts

TaxFreeTrusts writes the guides on this site and drafts the will and living trust packets at the prices posted on the page. Dollar figures in the guides are copied from the statute, IRS page, or court site linked beside them.