General DefinitionAny part of a decedent's estate not effectively disposed of by will. Sec. 45-2-101.
Order of DistributionThe intestate share of the surviving spouse, as to separate property, is determined as follows:
- If there is no surviving issue of the decedent,; the entire intestate estate; or
- If there is surviving issue of the decedent, one-fourth of the intestate estate.
As to community property, the one-half of the community property as to which the decedent could have exercised the power of testamentary disposition passes to the surviving spouse. Sec. 45-2-102.
Any part of the intestate estate not passing to the decedent's surviving spouse, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
- to the decedent's descendants by representation;
- if there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent if only one survives;
- if there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation;
- if there is no surviving descendant, parent or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents:
- (a) half to the decedent's paternal grandparents equally if both survive, to the surviving paternal grandparent if only one survives, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and
- half to the decedent's maternal grandparents equally if both survive, to the surviving maternal grandparent if only one survives, or to the descendants of the decedent's maternal grandparents or either of them if both are deceased, the descendants taking by representation; and
- if there is no surviving descendant parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent's relatives on the side with one or more surviving members in the manner described in Paragraph (4).
If there is no taker under the above, but the decedent has:
- one deceased spouse who has one or more descendants who survive the decedent, the estate or part thereof passes to that spouse's descendants by representation; or
- more than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part thereof passes to each set of descendants by representation.
If no person is entitled to inherit under New Mexico law, the intestate estate passes to the State. Sec. 45-2-105.
Common Law or Community PropertyNew Mexico is a community property state with quasi-community property. Sec. 45-2-102.
CapacityAn individual eighteen or more years of age who is of sound mind or an emancipated minor who is of sound mind may make a will. Sec. 45-2-501.
DraftingA will must be:
- in writing
- signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and
- signed by at least two individuals, each of whom signed in the presence of the testator and of each other after each witnessed the signing of the will. Sec. 45-2-502.
An individual generally competent to be a witness may act as a witness to a will. The signing of a will by an interested witness does not invalidate the will or any provision. Sec. 45-2-505.
A will may be simultaneously executed, attested and made self-proved by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal. Sec. 45-2-504.
BeneficiariesA beneficiary includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
ModificationsA will or any part of a will is revoked:
- by executing a subsequent will that revokes the previous will or part expressly or by inconsistency;
- by executing another subsequent document in the manner provided for in Section 45-2-502 or 45-2-504 NMSA 1978, or both, that expressly revokes the previous will or part thereof; or
- by performing a revocatory act on the will if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating or destroying the will or any part of it. A burning, tearing or canceling is a "revocatory act on the will", whether or not the burn, tear or cancellation touched any of the words on the will.
If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will. Sec. 45-2-507(B).
The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death. Sec. 45-2-507(C).
The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent. Sec. 45-2-507(D).
Naming of Personal RepresentativeTo acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the district court or probate court, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters. Sec. 45-3-103.
Whether the proceedings are formal or information, persons who are not disqualified have priority for appointment in the following order:
- the person with priority is determined by probated will, including a person nominated by a power conferred in the will;
- the surviving spouse of the decedent who is a devisee of the decedent;
- other devisees of the decedent;
- the surviving spouse of the decedent;
- other heirs of the decedent; and
- on application or petition of an interested person other than a spouse, devisee or heir, any qualified person. Sec. 45-3-203(A).
No person is qualified to serve as a personal representative who is:
- under the age of majority
- a person the court finds unsuitable in formal proceedings; or
- a credit of the decedent unless the appointment is to be made after forty-five days have elapsed from the death of the decedent. Sec. 45-3-203(F).
Submission of WillAny person having custody of a will shall, as soon as he is informed of the death of the testator, deliver the will to a person able to secure its probate or, if none is known, to an appropriate court.
If any person having the custody of a will fails to produce the will as provided for in Subsection A of this section, after receiving a reasonable notice to do so, he is liable to any person aggrieved for the damages that may be sustained by the failure. Any person who refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court. Sec. 45-2-516.
To be effective to prove the transfer of any property or to nominate a personal representative, a will must be declared to be valid by an order of informal probate by the probate court or an adjudication of probate by the district court. Sec. 45-3-102.
NotificationsNotice shall be given to the following persons: the surviving spouse, children and other heirs of the decedent (who would have taken had the decedent died intestate); the devisees and personal representatives named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere; and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the petitioner must give notice by publication to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated. Sec. 45-3-403.
Notice must be given:
- By mailing a copy thereof at least fourteen days before the time set for the hearing by certified, registered or ordinary first class mail addressed to the person being notified at the post office address given in his demand for notice, if any, or at his office or place of residence, if known; or
- By service of a copy thereof upon the person being notified in the manner provided by the Rules of Civil Procedure for service of summons and complaint in civil actions; or
- If the address or identity of any person is not known and cannot be ascertained with reasonable diligence, by publishing a copy thereof at least once a week for two consecutive weeks, in a newspaper published and having general circulation in the county in which the hearing is to be held or, if there is no newspaper published in the county, then in a newspaper of general circulation in the county, the last publication of which is to be at least ten days before the time set for the hearing. Sec. 45-1-401.
InventoryWithin three months after his appointment, a personal representative must prepare an inventory of property owned by the decedent at the time of his death, listing it with reasonable detail and indicating as to each listed item its estimated value as of the date of the decedent's death and the type and amount of any encumbrance that may exist with reference to any item. The personal representative must file the original of the inventory with the appropriate court. Sec. 45-3-706.
Exempt Property and the Family AllowanceThe decedent's surviving spouse is entitled from the estate to a value, not exceeding $15,000 in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances and personal effects. If there is no surviving spouse, the decedent's children who are devisees under the will, who are entitled to a share of the estate or, if there is no will, who are intestate heirs are entitled jointly to the same value. Sec. 45-2-403.
A decedent's surviving spouse is entitled to a family allowance of $30,000. If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a family allowance amounting to $30,000 divided by the number of minor and dependent children of the decedent. The family allowance is exempt from and has priority over all claims against the estate. Sec. 45-2-402.
Debts and DistributionsUpon the expiration of the earlier of the time limitations provided in Sec. 45-3-803, the personal representative will pay the claims allowed against the estate in the order of priority described, after making provision for family and personal property allowances, for claims already presented that have not yet been allowed or whose allowance has been appealed and for unbarred claims that may yet be presented, including costs and expenses of administration.
If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative must make payment in the following order:
- costs and expenses of administration, including compensation of personal representatives and of persons employed by the personal representatives;
- reasonable funeral expenses;
- debts and taxes with preference under federal law;
- reasonable medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent;
- debts and taxes with preference under other laws of New Mexico; and
- all other claims.
No preference may be given in the payment of any claim over any other claim of the same class and a claim due and payable shall not be entitled to a preference over claims not due. Sec. 45-3-805.
The New Mexico estate tax is the amount of the federal credit. Sec. 7-7-3(A). With the repeal of the federal credit, no tax is currently imposed.
Income Tax Charitable Deductions and/or Credits
New Mexico allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. Sec. 7-2-2(N)(2).
New Mexico allows a taxpayer to claim a credit for one-half of the costs incurred for the restoration, rehabilitation and preservation of cultural properties. In no event shall the credit exceed $25,000 ($50,000 if the property is located in a certified historic district). Sec. 7-2-18.2.
New Mexico also allows a taxpayer to claim a credit for 50% of the fair market value of land or a qualified conservation easement donated to an organization dedicated to the conservation and/or preservation of open space, agricultural, farming, watershed or historic preservation of lands. The amount of the credit for any donor shall not exceed $100,000 for donations made prior to January 1, 2008 and $250,000 for donations thereafter. The credit may not be used in excess of the donor's tax liability. A donor may carry forward any unused credit an additional 20 years from the gift date. Sec. 7-2-18.10(A).
Gift Annuity Requirements
New Mexico, a "notification" state, regulates the issuance of charitable gift annuities under Sec. 59A-1-16.1. Charitable gift annuities are exempt from insurance regulation in New Mexico provided the charity satisfies certain conditions and notifies to the Insurance Division of the New Mexico Public Regulation Commission.
To qualify, the charity must be described in Sec. 501(c)(3) or Sec. 170(c), have been in continuous operation for at least three years (or be a successor/affiliate of an organization that has) and have either an unrestricted fund balance of assets in excess of liabilities not less than $300,000 or unencumbered gift annuity fund assets of not less than $300,000.
Notification ProcessWritten notice must be provided to the Insurance Division by the date on which it enters into its first qualified gift annuity agreement. The notice should be signed by an officer or director of the charitable organization, identify the charitable organization and certify that it is a charitable organization and the annuities issued by the organization are qualified charitable gift annuities.
Disclosure LanguageThe gift annuity agreement must include state-specific disclosure language (in a separate paragraph, print size no smaller than that which is used in the agreement generally):
"A qualified charitable gift annuity agreement is not insurance under the laws of this state and is not subject to regulation by the insurance division or protected by a guaranty association affiliated with the division."
Reserve RequirementsNew Mexico requires the issuing charities to hold unencumbered gift annuity fund assets of not less than $300,000 if the charity does not have an unrestricted fund balance of assets in excess of liabilities not less than $300,000.
Annual Filing RequirementsOnce notification is given to the state, no further reporting is required.
State Contact InformationMargaret (Kika) Pena
Life and Health Bureau
Rate and Form Filing Section
P.O. Box 1269
Santa Fe, NM 87504-1269
1120 Paseo De Peralta
Santa Fe, New Mexico 87501
Phone: (505) 827-4561