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In most situations, having a last will prepared can ensure that, in case a person dies, their assets will be distributed accordingly. This is accurate in most parts of the U.S. However, some states have unique regulations that affect how assets will be passed on. 

In general, inheritance laws set the basis for allocating the assets of a person who has died. These regulations are significant for heirs to receive their inheritance, especially if, for some reason, the decedent’s will goes missing or is deemed insufficient. 

According to a report released by the New Mexico Courts in 2023, the First Judicial District — composed of Santa Fe, Los Alaminos, and Rio Arriba counties — had received 91 civil and domestic relations matters, including probate cases, through the Alternative Dispute Resolution program. Two-fifths of these cases were resolved and settled via settlements. The report also mentioned a 93% disposition rate for their caseload for the 2023 fiscal year. 

It can be extremely difficult for the relatives of the deceased to navigate the inheritance procedures while grieving. This reason makes it important to arrange and understand an individual’s estate in compliance with the state’s inheritance laws. The information discussed below will explore the rules and regulations surrounding New Mexico’s inheritance laws that can help executors successfully carry out the decedent’s wishes and minimize potential challenges.

What Happens if Someone Dies With a Will in New Mexico?

When a person dies in New Mexico, a last will is one of the most important things to have. Having it prepared while a person is still alive ensures that asset distribution goes according to an individual’s wishes. It can also help avoid potential disputes among beneficiaries. 

Although New Mexico has seemingly lax regulations, careful consideration is still needed when writing a will. The main purpose is to have a straightforward, enforceable, and legally binding document that states an individual’s wishes after their death. The will should express the testator’s intentions, free from unwarranted coercion or influence. Following the initial guidelines below is critical to avoiding legal complications that can affect the will’s effective implementation.

First, a will must be in physical, paper format in order to be recognized as a legitimate document in New Mexico. Audio recordings, digital data, and video versions do not satisfy this legal requirement. The document should also be clearly dated to prevent confusion if there are any previous wills.

A will cannot be finalized until the testator signs it in the presence of two witnesses, who must be competent and aware of the importance of their participation. In accordance with New Mexico Statutes Section 45-2-502, these witnesses must sign the will in front of the testator and in each other’s presence. An individual designated as an heir may stand in as a witness under New Mexico inheritance laws. However, it is recommended that impartial witnesses observe the will signing to avoid conflicts of interest.

As far as formatting goes, handwritten wills are accepted, as long as they are signed and witnessed accordingly. Ink-written wills should be dated, with the testator’s initials appending any changes. Handwritten wills that are not signed by the testator are not recognized as valid by the authorities in New Mexico.

Electronic wills are valid if printed and have undergone the regulatory signing and witnessing process. Sending a will electronically for advice does not make it legally binding until it meets the standard requirements.

Notarization of a will is also not mandatory in New Mexico, but it is beneficial. A notarized will is considered “self-proving,” which means the probate process of the court can proceed without verifying the witnesses’ signatures. The process of having a will notarized includes giving the notary an affidavit from the testator and witnesses that states their identities and their comprehension of witnessing a will.

Once a will is verified to be valid, the probate process can start. The general flow of a probate proceeding in New Mexico is as follows:

  1. Petition filing - This is done through the local probate court.

  2. Notification - Notice is given to beneficiaries or statutory heirs, usually through local newspapers. This also serves as a way to inform the creditors of the decedent.

  3. Estate inventory - This is commonly done by the administrator or executor for assembly, indexing, and appraisal purposes. The estate inventory will be filed in court.

  4. Debt payment - Using estate funds, outstanding debts will be paid.

  5. Asset distribution - The remaining assets after all outstanding balances are paid will be distributed to the heirs or beneficiaries.

In New Mexico, the court oversees the process of distributing a deceased person's assets, ensuring that debts and taxes are paid and the remaining assets are given to the proper beneficiaries. This process, called probate, can be complex.

Contesting a Will

When a will is contested in New Mexico, the court assists the disputing parties in discussing and confirming whether the will is legal. Probate concerns are usually handled by the probate court, but in situations where the will is contested, the district court has jurisdiction. 

A will can only be challenged by an “interested party.” Such a party can be a beneficiary under the current or previous will, or it could be someone qualified under intestate rules. The New Mexico Statutes list fraud, duress, incorrect execution, undue influence, and lack of testamentary competence as acceptable grounds for disputing.

If the challenge fails, the estate will be distributed according to the instructions in the will. A successful challenge will result in intestate succession per New Mexico Statutes Section 45-2-103. The estate is distributed to the surviving spouse, children, and other relatives in a specific order. If there are no relatives, the estate defaults to the state. 

A no-contest clause, added to some wills, can penalize beneficiaries who unsuccessfully challenge the will. When the contest is deemed unmeritorious, this clause can potentially lead to the challenger being disinherited or receiving a reduced inheritance. 

What Happens if Someone Dies Without a Will in New Mexico?

Under New Mexico’s inheritance rules, it is considered intestate when a person dies without a validly executed will. In such cases, the deceased’s assets will be managed by the intestate succession rules. 

In the absence of a will, the executor or personal representative of an estate is usually chosen by the court. Most of the time, the executor can be the spouse or an adult child of the deceased. Managing and protecting the estate falls under the purview of this appointed individual. 

Death intestate can happen for various reasons, but to spare the bereaved more grief, it is best to avoid this situation. Probate lawyers or financial consultants with expertise in estate planning are recommended for those preparing their estate.

Only assets subject to probate are affected by intestate succession. The state’s laws do not apply to many substantial assets because they avoid probate. These assets include:

  • Properties transferred to a living trust or in joint tenancy.

  • Payments from life insurance with named beneficiaries.

  • Retirement funds such as IRAs and 401(k)s.

  • Securities in transfer-on-death accounts.

Additional assets not going through intestate succession include payable-on-death bank accounts, automobiles registered with a transfer-on-death title, and real estate with a  transfer-on-death deed. Regardless of the existence of a will, these assets automatically pass on to the remaining joint owner or the designated beneficiary. 

However, these assets can be disbursed following the intestate succession laws if no live beneficiaries are named. Below is a quick guide to who gets what in the intestate succession process:

If a New Mexico resident dies with:

What they are entitled to:

Children but without a spouse or a lawful partner.

The children will, by law, inherit everything.

A spouse or lawful partner but without children.

The spouse gets all the assets.

No spouse or children but with living parents.

The parents inherit the assets.

Living siblings but with no parents, spouse, or children.

The siblings get the inheritance.

A spouse and children.

The spouse gets the entire community property and one-fourth of the separate property.

The children will inherit three-fourths of the separate property.

Spousal Rights

Being a community property state, New Mexico divides assets and debts in a way that makes sense to the parties involved, with the intention of sharing them 50/50. However, it is also an equitable distribution state, which means that if equally dividing the assets does not make sense, then a better plan of action will be created.

When it comes to spousal rights during an intestate succession in New Mexico, the kind of property owned during the marriage determines the surviving spouse’s inheritance rights. Community and separate property are distinct in New Mexico. If an asset is obtained during the marriage, it is referred to as common property, while assets acquired before the marriage are called separate or unique property. On the other hand, gifts or inheritances received by one spouse during the marriage are still considered separate property.

The surviving spouse of a person who dies without a will in New Mexico is entitled to receive a share of the common or community property. If the separate property is not included in the communal assets, the surviving spouse’s entitlement will vary. The presence of surviving children affects the portion the spouse will inherit since they are also entitled to a part of the separate property.

Children’s Rights

In New Mexico, children are entitled to an intestate share of the inheritance if the parent passes away without a will. The deceased’s marital status and the number of children will affect each child’s share of the inheritance. Intestacy inheritance rights in New Mexico require a child’s legal recognition.

Legally adopted children are entitled to the same portion of inheritance as biological children. On the other hand, foster and stepchildren who are not legally adopted are not automatically eligible for an intestate share. In the case of a kid who was given up for adoption and subsequently adopted by a different family, the child will not receive an inheritance. Adopted biological children by the deceased’s spouse are not covered by this, though.

Children conceived through aided reproduction are acknowledged if the departed parent served or was meant to serve as a parent within the child’s first two years. Similarly, if a parent-child relationship was legally created or if the decedent functioned or was supposed to function as a parent within two years, then children born to a gestational carrier are eligible.

New Mexico Statutes Sections 45-2-115 to 45-2-122 offer more details and clarification on parent-child relationships in terms of their legality.

The Rights of Other Surviving Relatives

If a single and childless New Mexico resident dies without leaving a will, by law, their estate will go to their closest living relative. The list starts with the parents. If the parents are deceased, it will go to the siblings, then to more distant relatives like grandparents, aunts/uncles, nieces/nephews, cousins, etc., in that order. Intestate succession for an individual mentioned in this situation is as follows:

Living parents without living siblings

The parents will inherit the entire asset left by the decedent.

Living siblings without living parents

The remaining surviving siblings will receive the inheritance.

Estates With No Heirs

If an individual in New Mexico dies intestate, their property, by law, will be sent to the state through a process called escheatment. Escheatment happens when the state takes over an individual’s assets when nobody is legally allowed to claim them. 

However, as a result of the state’s extensive inheritance rules, this is a rare and uncommon situation. Due to the way the rules of intestacy are outlined and established, the properties left by the decedent are bound to be passed on to immediate relatives, no matter how far away they are located. 

The existence of any close relatives, like a spouse, children, parents, aunts and uncles, grandparents, cousins, or any descendants, can potentially prevent the decedent’s properties from undergoing escheatment. New Mexico’s judicial system diligently searches for any relatives to avoid the scenario where assets are taken by the state.

Unique Situations in New Mexico Inheritance Laws

New Mexico enforces specific rules requiring heirs to survive the decedent by a certain time period to inherit under intestate succession. The eligibility standard for a person for survivorship is outliving the deceased for more than 120 hours, including newborns. Additionally, babies who were not born during the time of death but were conceived before it can receive inheritance.

Another guideline to keep in mind is regarding inheritance eligibility by citizenship. Generally, an heir’s immigration status or citizenship will not affect their right to inherit assets from the decedent. In New Mexico, half-relatives are given the same inheritance rights as full-blood relatives.

Regarding gifts made by the decedent to heirs during their lifetime, the value of the gifted property can be deducted from the heirs' inheritance shares. However, this is only applicable if the gift was documented in writing when it was given. This particular guideline ensures equal distribution of the deceased’s assets.

Does New Mexico Impose Inheritance and Estate Taxes?

Currently, New Mexico does not impose inheritance and estate taxes, which is one less thing residents need to worry about.

However, while both inheritance and estate taxes are assessed on the assets transferred following the decedent’s death, these two vary when it comes to application. If an individual is in a state where inheritance and estate tax apply, before distributing the deceased’s assets, the total amount of the assets will be determined to identify and deduct the estate tax. On the other hand, inheritance tax is the primary concern of beneficiaries when receiving assets.

It is significant to understand whether inheritance tax will apply to assets received by a beneficiary. Knowing its ins and outs can help in creating a plan to reduce the amount of tax to be paid. Navigating through the legalities of estate taxes can be challenging and may require the assistance of an estate planning attorney.

Legal Resources Related to Inheritance Law in New Mexico

New Mexico Courts

The New Mexico Courts' Self-Help Guide gives individuals general information on how they should represent themselves in court. It provides links to referral programs and other legal services relating to probate, domestic violence, marriage dissolution, guardianship, and name change.

New Mexico Legal Aid

New Mexico Legal Aid is an organization that focuses on providing legal advice to low-income families and individuals. It also works with veterans, people with disabilities, the elderly, and farmers seeking legal assistance. Free legal services are provided by the organization to tribal members near or living within the Mescalero Apache Nation and the 19 pueblos.

Its Volunteer Attorney Program works closely with the State Bar of New Mexico to assist New Mexico residents in finding pro bono lawyers and coordinates with legal clinics to help low-income individuals.

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