What Happens If You Die Without a Will in New Mexico?
New Mexico is a community property state, so the surviving spouse already owns half of what the couple acquired during the marriage. Without a will in New Mexico, descendants divide what passes to them per capita at each generationNMSA § 45-2-106Verified Oct 21, 2026View source, and an heir must survive the decedent by 120 hoursNMSA § 45-2-104(A)Verified Oct 21, 2026View source to inherit.
New Mexico intestacy law decides. As a community property stateNMSA § 45-2-102Verified Oct 21, 2026View source, New Mexico distinguishes community property (acquired during the marriage) from separate property (owned before it, or received as a gift or inheritance), and the surviving spouse's share differs for each. The estate passes to the closest surviving relatives, in most cases the spouse and children first, then in order: Parents; Descendants of your parents; Grandparents and their descendants; A deceased spouse's descendants; The state of New MexicoNMSA § 45-2-102Verified Oct 21, 2026View source.
The surviving spouse's share in New Mexico depends on the family. With no children: Community property: decedent's 1/2 passes to spouse (spouse holds 100%). Separate property: 100% to spouseNMSA § 45-2-102Verified Oct 21, 2026View source. With shared children: Community property: decedent's 1/2 passes to spouse (spouse holds 100%). Separate property: 1/4 to spouse, 3/4 to childrenNMSA § 45-2-102Verified Oct 21, 2026View source. When a child from a prior relationship survives: Community property: decedent's 1/2 passes to spouse (spouse holds 100%). Separate property: 1/4 to spouse, 3/4 to childrenNMSA § 45-2-102Verified Oct 21, 2026View source.
New Mexico divides per capita at each generationNMSA § 45-2-106Verified Oct 21, 2026View source: surviving descendants at each generational level share equally, with deceased members' shares pooled and redistributed at the next level.
New Mexico requires an heir to survive the decedent by 120 hoursNMSA § 45-2-104(A)Verified Oct 21, 2026View source to inherit; an heir who dies within that period is treated as having died first, and the share passes to the next eligible heir. When one spouse dies without a will in New Mexico, how each asset is classified, community or separate, decides what passes and to whom. With shared children, the surviving spouse's share: Community property: decedent's 1/2 passes to spouse (spouse holds 100%). Separate property: 1/4 to spouse, 3/4 to childrenNMSA § 45-2-102Verified Oct 21, 2026View source.
Under New Mexico intestacy law, a stepchild or an unmarried partner does not inherit unless adopted or recognized by statute. A stepchild can inherit in New Mexico through the tier just ahead of escheat: if there is no taker among your descendants, parents, parents' descendants, or grandparents and their descendants, the estate passes to the surviving descendants of your deceased spouse by representationNMSA § 45-2-103(B)Verified Oct 21, 2026View source. Outside those situations, a will or trust is how a stepchild or an unmarried partner is provided for. The New Mexico will signing requirements set out what a valid will takes.
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Inheritance
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Death of a Parent
A step-by-step guide to what happens after a parent dies: the documents to find, the certificates to order, and whether probate is even required.
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Divorce
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Learn moreForms for Planning and Settling an Estate in New Mexico
Free New Mexico forms for planning an estate or settling one: a will, trust, powers of attorney, TOD deed, and the probate forms an executor files.
Notice to Creditors
In New Mexico, creditors have 4 monthsNMSA § 45-3-801 (four months from first publication; sixty days from mailed notice, whichever is later); § 45-3-803 (claims barred at the earlier of one year after death or the § 45-3-801 periods)Verified Sep 8, 2026View source from first publication to present claims.
Renunciation of Executor
In New Mexico, a person named as personal representative may renounce the right to serveNMSA 1978, § 45-3-203(C)Verified Sep 23, 2026View source before anyone is appointed.
Small Estate Affidavit
In New Mexico, the Small Estate Affidavit§ 45-3-1201Verified Sep 8, 2026View source covers estates valued at $50,000§ 45-3-1201Verified Sep 8, 2026View source or less, 30 days§ 45-3-1201Verified Sep 8, 2026View source after death, presented directly to the bank or other holder, not filed with a court.
Estate Inventory
In New Mexico, the personal representative files the estate inventory within 90 daysNMSA § 45-3-706Verified Sep 15, 2026View source of appointment.
Estate Closing
In New Mexico, the personal representative is discharged automatically once the statutory period runsNMSA § 45-3-1003(B); § 45-3-1005Verified Sep 15, 2026View source, and a final accounting is required.
IRS Form 1310
Claim a refund due a deceased taxpayer on the official form, on the box the form routes you to, with what the form says to attach.
Letter of Instruction
Prepare the letter a bank or insurer requests during estate settlement, addressed to its claims department.
Last Will and Testament
In New Mexico, a will is signed before 2NMSA § 45-2-502Verified Oct 19, 2026View source witnesses, and a self-proving affidavit signed with it lets the court admit it without witness testimonyNMSA § 45-2-502Verified Oct 19, 2026View source.
Tools for Planning and Settling an Estate in New Mexico
Free calculators and checklists for planning or settling an estate in New Mexico: will and trust costs, probate, executor pay, and inheritance taxes.
How Much Does Probate Cost?
Probate on a $500,000 estate in New Mexico costs an estimated $24,985NMSA § 45-3-715(A)(21) (PR may employ attorneys); § 45-3-721 (court review of the compensation); § 45-3-720 (estate litigation expenses, incl. attorneys fees); no statutory percentageVerified Sep 8, 2026View source. Attorney fees run 1.8%Modeled estimate under NMSA § 45-3-715(A)(21) (PR may employ attorneys); § 45-3-721 (court review of the compensation); § 45-3-720 (estate litigation expenses, incl. attorneys fees); no statutory percentage: the hours the statutory fee schedules imply, at the state's surveyed hourly rateVerified Sep 8, 2026View source to 2.9%Modeled estimate under NMSA § 45-3-715(A)(21) (PR may employ attorneys); § 45-3-721 (court review of the compensation); § 45-3-720 (estate litigation expenses, incl. attorneys fees); no statutory percentage: the hours the statutory fee schedules imply, at the state's surveyed hourly rateVerified Sep 8, 2026View source of the estate under a reasonable-compensation standard.
What Are the Burial and Cremation Laws in My State?
New Mexico allows you to name your own agent in advanceNMSA 1978 § 24-12-4(A)(2)Verified Oct 17, 2026View source, and that designation takes priority over the order of next of kin who otherwise control disposition of the remains.
How Much Are Estate & Inheritance Taxes?
New Mexico levies no estate or inheritance taxNMSA 1978 §§ 7-7-3(A), 7-7-2(D) (Estate Tax Act — pick-up tax equal to the IRC § 2011 federal credit, $0 since 1/1/2005)Verified Sep 15, 2026View source; only the federal estate tax applies above $15,000,00026 USC 2001(c), 2010; P.L. 119-21 §70106Verified Sep 15, 2026View source.
What Taxes Apply to My Inheritance?
New Mexico imposes no inheritance or estate taxNMSA 1978 §§ 7-7-3(A), 7-7-2(D) (Estate Tax Act — pick-up tax equal to the IRC § 2011 federal credit, $0 since 1/1/2005)Verified Sep 15, 2026View source; probate assets arrive when the estate closes, 4 months to 6 months for a simple estate.
How Does Step-Up in Basis Work?
Inherited assets in New Mexico take a basis reset to fair market value on the date of death26 USC § 1014Verified Sep 15, 2026View source, and the gain on a later sale faces ordinary income tax at the state's regular rates, after the first $2,500 of gain is excludedNMSA 1978 § 7-2-34 (as amended by Laws 2024, Ch. 67 / HB 252 § 8)Verified Sep 15, 2026View source.
What Are the Estate Laws in My State?
Probate on a $500,000 estate in New Mexico costs an estimated $24,985NMSA § 45-3-715(A)(21) (PR may employ attorneys); § 45-3-721 (court review of the compensation); § 45-3-720 (estate litigation expenses, incl. attorneys fees); no statutory percentageVerified Sep 8, 2026View source and takes 4 months to 6 months for a simple estate, with attorney fees of typically 1.8%Modeled estimate under NMSA § 45-3-715(A)(21) (PR may employ attorneys); § 45-3-721 (court review of the compensation); § 45-3-720 (estate litigation expenses, incl. attorneys fees); no statutory percentage: the hours the statutory fee schedules imply, at the state's surveyed hourly rateVerified Sep 8, 2026View source to 2.9%Modeled estimate under NMSA § 45-3-715(A)(21) (PR may employ attorneys); § 45-3-721 (court review of the compensation); § 45-3-720 (estate litigation expenses, incl. attorneys fees); no statutory percentage: the hours the statutory fee schedules imply, at the state's surveyed hourly rateVerified Sep 8, 2026View source of the estate. Estates under $50,000§ 45-3-1201Verified Sep 8, 2026View source can use a small-estate procedure instead.
When Do I Have to Withdraw an Inherited IRA?
See which federal withdrawal rules apply to an inherited IRA, Roth IRA, or employer plan, the deadline year, and the missed-withdrawal tax.
How Much Can an Executor Charge?
New Mexico pays executors reasonable compensationNMSA § 45-3-719 (reasonable compensation; no statutory percentage); § 45-3-721 (court review of reasonableness)Verified Sep 8, 2026View source, typically 2.2%Estimated from the 16 state statutes that set an executor fee schedule (median and interquartile range at this estate value)Verified Sep 8, 2026View source to 3.8%Estimated from the 16 state statutes that set an executor fee schedule (median and interquartile range at this estate value)Verified Sep 8, 2026View source of the estate.
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New Mexico Estate Planning Resources
In-depth guides covering New Mexico probate laws, trust requirements, and estate planning strategies.