How Does the New Mexico Probate Court Work?

Probate Courts in New Mexico are established in all 33 counties across the state. These are courts of limited jurisdiction with a narrow scope and area of specialty. New Mexico Probate Courts handle informal probation and uncontested estate cases such as conservatorships, wills, trusts, and estates.

Probate in New Mexico is the official way of settling or resolving an estate under the court’s supervision. Usually, to determine such cases, estates in New Mexico are distributed according to the decedent’s will. If there is no will available, the estate will be distributed according to New Mexico’s intestate succession laws where the court appoints a legally qualified individual (usually the surviving spouse or an adult child) to manage the decedent’s affairs. The selected individual, traditionally called a personal representative or executor, possesses the legal act on behalf of the deceased by collecting, valuing, and distributing the decedent’s assets to the beneficiaries.

In the state of New Mexico, the general procedure adopted when settling an estate is stated in the Uniform Probate Code that divides probate proceedings into:

• Informal probate
• Unsupervised probate
• Supervised formal probate

Informal probate proceedings are the most common probate proceedings because such cases are uncontested with no disputes between the parties involved. The unsupervised formal probate ensures that the probate judge monitors the personal representative’s actions concerning the assets’ disposition. The judge’s participation in this process is essential to settle disputes between the beneficiaries and heirs involved. Also, in the supervised formal probate proceedings, the judge essentially monitors the entire process by approving the distribution methods of all property and assets.

According to state laws, a probate case must be filed within three years following the owner’s death. The law also prohibits the appointment of a personal representative during the first 120 hours (five days) following the estate owner’s death. The court is mandated to prevent fraud after an individual’s passing by making sure to freeze the estate until;

• The availability, credibility, and validity of a will is determined;
• All relevant parties are notified;
• All property in the estate is identified, appraised, and valued;
• All bills and taxes are paid.

In New Mexico, probate courts are dedicated courts that hear only “uncontested” probate cases. The courts shared original jurisdiction with District Courts’ overall informal probate cases, including the informal appointment of a personal representative and matters where there are no issues or disputes regarding the existence of a valid will. This means that individuals may file such probate cases in a probate or district court.

However, contested probate cases that involve dissension and appeals go to the district courts in the state judicial system. Under some circumstances, the probate courts may also have additional jurisdiction to determine heirship of real property and perform marriages within their county of location.

New Mexico Probate Courts do not have jurisdiction over criminal and civil cases of petty misdemeanors, malicious prosecution, slander, libel, misconduct in a public office, contract disputes, requests for injunctive relief, etc. Nevertheless, the probate courts share jurisdiction with the district, metropolitan, and magistrate courts over preliminary hearings in all criminal cases and trials for certain misdemeanors punishable only by fines.

Individuals are only permitted to file probate cases in the county where the decedent resided at the time of death. However, New Mexico allows individuals to file cases if the deceased individual resided outside the state but owned a county’s property.

The New Mexico Probate courts do not conduct jury trials; hence, all cases are decided by the Probate Judge. A total of 33 judges elected to 4-year terms in county general elections preside over the probate courts. The position of the probate judge is deemed a part-time position in the state.

It is important to note that not all estate cases require a probate proceeding in New Mexico. The probate proceeding for a decedent’s assets depends on how the assets were titled and if an individual requires legal authority. If an estate falls below a certain threshold or is valued less than a certain dollar amount, it may be considered a “small estate.” In this case, such an estate may not require court supervision to be settled. Some assets are also not subject to probate because such assets are automatically transferred with no necessary probate after the owner’s passing. Examples of such assets are;

• Joint tenancy assets due to “right of survivorship”: In this case, when the property is jointly owned by two individuals and one of them passes, without the need for a court order or proceeding, the surviving tenant becomes the sole owner of the property
• Payable on death accounts/transfer on death accounts with designated beneficiaries: In this case, the account owner most likely filled out forms designating individuals or beneficiaries that would receive the account, assets, or benefits after their death. Retirement accounts, pension plans, and life insurance policies are examples of such accounts.

Probate cases may be filed with or without a legal practitioner’s assistance, depending on the case’s complexity. Most uncontested probate cases can be filed without an attorney’s help by using the downloadable self-help forms. The probate court staff may also provide general information about the probate process and laws involved, but not legal advice as they are forbidden by law to do so.

Probate court case files are public records that can be reviewed or copied by members of the public, provided that the requested documents are not exempted by law or sealed by court order. The court rules insist that individuals requesting access to view probate court records must submit a written or oral request that provides the requesters’ names, addresses, phone numbers, and valid government-issued identification documents.

The custodian also permits inspection or copying of the requested probate records. Requesters may visit the county courts where the case of the request was filed to locate desired probate records. If the requester is unsure or places a request for probate records at the wrong court, the probate court clerk has the responsibility to forward the request to the appropriate court or custodian.

Bernalillo County Probate Court

One Civic Plaza NW, 6th floor

Albuquerque, NM 87102 ​

Phone: (505) 468–1229

​Fax: (505) 468–1298