New Mexico small estate affidavit

Who can use it

Under NMSA 45-3-1201, a person entitled to the property can present an affidavit stating that:

1. the whole estate, wherever located, less liens and encumbrances, is worth $50,000 or less;
2. 30 days have passed since the death;
3. no application or petition to appoint a personal representative is pending or has been granted anywhere; and
4. the person signing is entitled to the property.

The $50,000 limit has applied since January 1, 2012; before that it was $30,000.

How it works

Nothing is filed with a court. You give the signed affidavit to whoever holds the property, such as a bank, and it must pay or deliver to you. Transfer agents must also re-register stock to the successor on the affidavit.

What it cannot do

The affidavit cannot be used to transfer title to real estate (45-3-1201(C)). A house usually needs probate, a recorded transfer on death deed, or, for a surviving spouse and a community-property home, the separate residence affidavit in NMSA 45-3-1205, which has its own conditions. Ask a lawyer before relying on it.

Counting the $50,000

Count only property that would go through probate: things in the person's sole name with no beneficiary. Life insurance, retirement accounts with beneficiaries, and joint or payable-on-death accounts are not part of the probate estate. Subtract liens, such as a car loan, from the value of the item they secure.

Frequently asked questions