reglab/statecodes huggingface dataset:
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2 - Intestate Succession and Wills › Part 11 - PROPERTY INTERESTS › Section 45-2-1116 - Application to existing relationships.

Except as otherwise provided in Section 13 [45-2-1113 NMSA 1978] of the Uniform Disclaimer of Property Interests Act, an interest in or power over property existing on the effective date of that act as to which the time for delivering or filing a disclaimer under law superseded by that act has not expired may be disclaimed after the effective date of that act.
History:
Laws 2001, ch. 290, § 16; 1978 Comp., § 46-10-16 recompiled as § 45-2-1116 by Laws 2011, ch. 124, § 101.
ANNOTATIONS
Recompilations.
— Laws 2011, ch. 124, § 101 recompiled former 46-10-16 NMSA 1978 as 45-2-1116 NMSA 1978, effective January 1, 2012.
COMMENT
This section deals with the application of the Act to existing interests and powers. It insures that disclaimers barred by the running of a time period under prior law will not be revived by the Act. For example, assume prior law, like the prior Acts and former Section 2-801, allows the disclaimer of present interests within nine months of their creation and the disclaimer of future interests nine months after they are indefeasibly vested. Under T's will, X receives an outright devise of a sum of money and also has a contingent remainder in a trust created under the will. The Act is effective in the jurisdiction governing the administration of T's estate ten months after T's death. X cannot disclaim the general devise, irrespective of the application of Section 2-1113 [45-2-1113 NMSA 1978], because the nine months allowed under prior law have run. The contingent remainder, however, may be disclaimed so long as it is not barred under Section 2-1113 without regard to the nine month period of prior law.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-1 - Short title.

This act [45-2A-1 to 45-2A-17 NMSA 1978] may be cited as the "Uniform Statutory Will Act".
History:
Laws 1991, ch. 173, § 1.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-3 - Making statutory will.

An individual having capacity to make a will under the laws of this state may make a statutory will under the Uniform Statutory Will Act. The will must be executed in a manner recognized as valid under the laws of this state.
History:
Laws 1991, ch. 173, § 3.
ANNOTATIONS
Cross references.
— For execution of wills,
see
45-2-502 NMSA 1978.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-4 - Incorporation by reference.

A. A will may incorporate by reference the provisions of the Uniform Statutory Will Act in whole or in part and with any modifications and additions the will provides. To the extent an express provision of a will conflicts with that act, the will governs.
B. A provision that all or part of the testator's testamentary estate is to be disposed of in accordance with the Uniform Statutory Will Act incorporates by reference provisions of that act in effect on the date the will is executed.
C. An incorporation by reference of provisions of the Uniform Statutory Will Act may be in the following or a substantially similar form:
"Except as otherwise provided in this will, I direct that my testamentary estate be disposed of in accordance with the New Mexico's Uniform Statutory Will Act."
History:
Laws 1991, ch. 173, § 4.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-5 - Shares under statutory will.

The statutory-will estate passes as provided in Sections 6 through 10 [45-2A-6 to 45-2A-10 NMSA 1978] of the Uniform Statutory Will Act.
History:
Laws 1991, ch. 173, § 5.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-6 - Share of spouse.

A. The share of the surviving spouse is:
(1) if there is no surviving issue, the entire statutory-will estate; or
(2) if there is a surviving issue:
(a) subject to any lien or encumbrance, the testator's residence and tangible personal property, except personal property held primarily for investment or for a commercial, agricultural or other business purpose;
(b) the greater of one hundred fifty thousand dollars ($150,000) or one-half of the balance of the statutory-will estate; and
(c) subject to Subsection B of this section, an interest in the remaining portion of the statutory-will estate, including any property that would pass under Subparagraph (a) of this paragraph but disclaimed by the surviving spouse, in a trust upon the terms set forth in Section 7 [45-2A-7 NMSA 1978] of the Uniform Statutory Will Act.
B. If the personal representative, other than the surviving spouse, determines that the trust under Section 7 of the Uniform Statutory Will Act would be uneconomical, the entire statutory-will estate passes to the surviving spouse.
History:
Laws 1991, ch. 173, § 6.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-8 - Shares of heirs when no surviving spouse.

A. If there is no surviving spouse, the statutory-will estate passes, subject to Sections 9 and 10 [45-2A-9, 45-2A-10 NMSA 1978], as follows:
(1) if there is surviving issue, in equal shares to the children of the testator if all of them survive, otherwise to the surviving issue of the testator by representation; or
(2) if there is no surviving issue, to the individuals entitled to receive the estate as if the property were located in this state and the testator had died intestate domiciled in this state in the proportions so determined.
B. Unless the personal representative determines that a trust would be uneconomical, property to which Section 9 or 10 applies must be distributed to the trustee. If the personal representative determines that a trust would be uneconomical, the property passes under Subsection A of this section free of trust. The discretion provided in this subsection to the personal representative is not exercisable by any of the testator's issue serving as personal representative.
History:
Laws 1991, ch. 173, § 8.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-10 - Effect of disability at distribution.

A. If property becomes distributable by a personal representative or trustee to an individual under the age specified in the will or, if the will does not specify an age, under the age of twenty-three years, or to an individual who the personal representative or trustee determines cannot effectively manage or apply the property by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause:
(1) the personal representative or trustee, as to principal or income, may distribute part or all of the property to the distributee directly, by deposit or investment in the distributee's name or for the distributee's account, or to a guardian or conservator for the distributee;
(2) the personal representative may distribute to the trustee in trust under Paragraph (3); or
(3) the trustee may retain all or any of the property in trust for the distributee and thereafter at any time the trustee may distribute or apply part or all of the principal or income to or for the benefit or account of the distributee.
B. Unless terminated earlier, a trust under Paragraph (3) of Subsection A of this section terminates upon the attainment of the required age, removal of the disability or death of the distributee. Upon termination, the trustee shall distribute the remaining trust property to the distributee or personal representative of the distributee's estate.
C. This section does not apply to distributions to a surviving spouse of the testator.
History:
Laws 1991, ch. 173, § 10.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-11 - Powers of appointment.

A. A will incorporating by reference the terms of the Uniform Statutory Will Act does not exercise a power of appointment unless:
(1) the will complies with any conditions imposed on the exercise of the power;
(2) the appointment is within the scope of the power; and
(3) the will expressly refers to the power or expresses an intent to exercise any power of appointment held by the testator.
B. If a power of appointment is exercised as provided in Subsection A of this section, the appointed property passes as part of the statutory-will estate unless the will provides otherwise.
History:
Laws 1991, ch. 173, § 11.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-13 - Appointment of personal representative and trustee.

A. The person named in the will as personal representative or trustee is entitled to serve, if qualified, as personal representative or trustee.
B. If a qualified person is not named in the will as personal representative, or the named person is incapacitated, unwilling to serve or dead, and a qualified alternate is not named in the will, priority for appointment as personal representative is determined by the law of the state of decedent's domicile at death.
C. If a qualified person is not named in the will as trustee, or the named person is incapacitated, unwilling to serve or dead, and a qualified alternate is not named in the will, the personal representative may appoint, without court approval, a qualified person, including a person serving as personal representative, to serve as trustee.
D. If a personal representative or trustee resigns, is removed, becomes incapacitated or dies, the surviving spouse, or if there is no surviving spouse or the surviving spouse is unable or unwilling to act, a majority of the adult children of the testator may appoint a qualified successor personal representative or trustee.
E. In all other cases, personal representatives and trustees must be appointed by the court.
History:
Laws 1991, ch. 173, § 13.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-15 - Bond or surety.

A personal representative or trustee under the Uniform Statutory Will Act shall serve without giving bond or surety unless the testator by will, or the court upon the application of any person interested in the estate, provides otherwise.
History:
Laws 1991, ch. 173, § 15.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-16 - Uniformity of application and construction.

The Uniform Statutory Will Act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of that act among states enacting it.
History:
Laws 1991, ch. 173, § 16.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 2A - Uniform Statutory Will Act › Section 45-2A-17 - Form of statutory will.

I, ________, of the City of ________, County of ________, and State of ________, declare this to be my Last Will and hereby revoke all of my prior wills and codicils.
1. I direct that my testamentary estate be disposed of in accordance with the Uniform Statutory Will Act, as in effect on the date of execution of this will.
2. I appoint ________ as personal representative of my estate under this will. If a trust becomes applicable under the provision of the Act, I appoint ________ as trustee hereunder. If either of them does not serve, or at any time ceases to serve, in either capacity, I appoint ________ to serve in the vacant capacity or capacities. I appoint ________ as guardian and conservator of my minor children. I, ________, the testator, sign my name to this instrument this ______________ day of ________, 19 ____, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my Last Will and that I (sign it willingly) (willingly direct another to sign for me) (cross out the one of these two alternatives that is inapplicable), that I execute one of these two alternatives that is inapplicable [sic], that I execute it as my free and voluntary act for the purpose therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.
__________________ Testator
We, ________ and ________ the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as (his) (her) Last Will and that (he) (she) (signs it willingly) (willingly directs another to sign) (her) (him) (cross out the inapplicable word or phrase in each of these instances), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.
__________________ Witness
__________________ Witness
State of __________________
County of __________________
Subscribed, sworn to and acknowledged before me by ________, the testator, and subscribed and sworn to before me by ________ and ________, witnesses, this ________ day of ________, 19 ____.
(Seal)
(Signed) __________________________________________________
___________________________________________________________
(official capacity of officer)
History:
Laws 1991, ch. 173, § 17.
ANNOTATIONS
Bracketed material.
— The bracketed material was not inserted by the compiler and it is not part of the law.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 1 - GENERAL PROVISIONS › Section 45-3-102 - Necessity of order of probate for will.

Except as provided in Sections 45-3-1201, 45-3-1205 and 45-3-1301 NMSA 1978, 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.
History:
1953 Comp., § 32A-3-102, enacted by Laws 1975, ch. 257, § 3-102; 1995, ch. 210, § 31; 2005, ch. 143, § 1.
ANNOTATIONS
Cross references.
— For execution and formalities of attested wills,
see
45-2-502 NMSA 1978.
For self-proved wills,
see
45-2-504 NMSA 1978.
The 2005 amendment,
effective July 1, 2005, expanded the exception to include Sections 45-3-1205 and 45-3-1301 NMSA 1978.
The 1995 amendment,
effective July 1, 1995, substituted "Section 45-3-1201 NMSA 1978" for "Section 3-1201" and deleted the former second sentence, relating to admission as evidence of a devise of a duly executed and unrevoked will which has not been probated.
Passage of real and personal property distinguished.
— Real estate of a decedent passes directly to the heirs or devisees and does not pass to the executor or administrator. With personal property the rule is otherwise, and before title passes there must be due administration followed by a determination of heirship and an order of distribution.
Clovis Nat'l Bank v. Callaway
, 1961-NMSC-129, 69 N.M. 119, 364 P.2d 748 (decided under prior law).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 79 Am. Jur. 2d Wills § 227.
Relation back of probate of will in support of title or rights of persons claiming under or through devisee, 48 A.L.R. 1035.
Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration, 2 A.L.R.4th 1315.
95 C.J.S. Wills § 310.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 1 - GENERAL PROVISIONS › Section 45-3-103 - Necessity of appointment for administration.

Except as otherwise provided in Sections 4-101 through 4-401 [45-4-101 to 45-4-401 NMSA 1978], to 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.
History:
1953 Comp., § 32A-3-103, enacted by Laws 1975, ch. 257, § 3-103.
ANNOTATIONS
Compiler's notes.
— This section is similar to former 31-1-2, 1953 Comp.
Cross references.
— For informal probate or appointment proceedings,
see
45-3-301 NMSA 1978.
For formal proceedings concerning appointment of personal representative,
see
45-3-414 NMSA 1978.
Effect of mistake as to character of letters.
— A mistake as to the character of letters issued does not render them and all acts performed by the executor or administrator void.
Amberson v. Candler
, 1913-NMSC-007, 17 N.M. 455, 130 P. 255 (decided under former law).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Relation back of letters testamentary or of administration, effect of doctrine of, on suits and actions growing out of previous acts, 26 A.L.R. 1369.
Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative, 11 A.L.R.4th 638.
33 C.J.S. Executors and Administrators § 63.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 1 - GENERAL PROVISIONS › Section 45-3-104 - Claims against decedent; necessity of administration.

A. No proceeding to enforce a claim against the estate of a decedent or his successors may be revived or commenced before the appointment of a personal representative. After the appointment and until distribution, all proceedings and actions to enforce a claim against the estate are governed by the procedure prescribed by Sections 3-101 through 3-1204 [45-3-101 to 45-3-1204 NMSA 1978]. After distribution a creditor whose claim has not been barred may recover from the distributees as provided in Section 3-1004 [45-3-1004 NMSA 1978] or from a personal representative individually liable as provided in Section 3-1005 [45-3-1005 NMSA 1978].
B. Subsection A of this section shall have no application to a proceeding by a secured creditor of the decedent to enforce his right to his security except as to any deficiency judgment which might be sought therein.
History:
1953 Comp., § 32A-3-104, enacted by Laws 1975, ch. 257, § 3-104.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Law official comment to 3-104 UPC.
Cross references.
— For informal probate or appointment proceedings,
see
45-3-301 NMSA 1978.
For formal proceedings concerning appointment of personal representative,
see
45-3-414 NMSA 1978.
For appointment of administrator on application of revenue division of department of taxation and revenue, and to waiver of administration after payment of estate tax,
see
7-7-9 NMSA 1978.
This section was not an obstacle to mere filing of complaint
where, in order to escape the bar of the statute of limitations, the plaintiff brought an action before the appointment of a personal representative by naming the prospective personal representative as "John Doe" and then diligently pursued the appointment of the personal representative.
Macias v. Jaramillo
, 2000-NMCA-086, 129 N.M. 578, 11 P.3d 153.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Legacy charged upon land devised, right of legatee to enforce payment of, as against personal representative of devisee, 116 A.L.R. 27, 134 A.L.R. 361.
Creditor's right to maintain action in interest of decedent's estate, 158 A.L.R. 729.
Running of statute of limitations as affected by doctrine of relation back of appointment of administrator, 3 A.L.R.3d 1234.
Amount of claim filed against decedent's estate as limiting amount recoverable in action against estate, 25 A.L.R.3d 1356.
Effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person in whose favor it would have accrued, 28 A.L.R.3d 1141.
26A C.J.S. Descent and Distribution § 116; 33 C.J.S. Executors and Administrators § 192; 34 C.J.S. Executors and Administrators § 694.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 1 - GENERAL PROVISIONS › Section 45-3-105 - Proceedings affecting devolution and administration.

Persons interested in decedents' estates may apply to the probate court for determination in the informal proceedings provided in Sections 3-101 through 3-1204 [45-3-101 to 45-3-1204 NMSA 1978], and may petition the district court for orders in formal proceedings within its jurisdiction.
History:
1953 Comp., § 32A-3-105, enacted by Laws 1975, ch. 257, § 3-105.
ANNOTATIONS
Cross references.
— For interested person's demand for notice in decedent's estate proceedings,
see
45-3-204 NMSA 1978.
For interested person's right to demand bond for personal representative,
see
45-3-605 NMSA 1978.
For protective proceedings,
see
45-5-406 NMSA 1978.
For bond for conservator,
see
45-5-416 NMSA 1978.
Effect of request for formal proceeding.
— Where a distributee has requested, and the personal representative has agreed to, adjudication of the distributee's share of estate assets in a formal proceeding, and neither the parties nor the district court have agreed to or ordered any change in the nature of the proceeding, procedures provided by Subsection C of 45-3-906 NMSA 1978, relating to proposals for distribution in informal proceedings, are inapplicable.
Estates of Brown v. Dickinson
, 2000-NMCA-030, 128 N.M. 825, 999 P.2d 1057.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 1 - GENERAL PROVISIONS › Section 45-3-105.1 - Repealed.

ANNOTATIONS
Repeals.
— Laws 1978, ch. 159, § 15, repealed 32A-3-105.1, 1953 Comp. (45-3-105.1 NMSA 1978), as enacted by Laws 1977, ch. 121, § 1 relating to probate filing, effective March 6, 1978.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 1 - GENERAL PROVISIONS › Section 45-3-106 - Proceedings before district court; service; jurisdiction over persons.

In proceedings before the district court where notice is required by the Uniform Probate Code or by rule, and in proceedings to construe probated wills or determine heirs which concern estates that have not been and cannot now be opened for administration, interested persons may be bound by the orders of the district court in respect to property in or subject to the laws of New Mexico by notice in conformity with Section 45-1-401 NMSA 1978. An order is binding as to all who are given notice of the proceeding though less than all interested persons are notified.
History:
1953 Comp., § 32A-3-106, enacted by Laws 1975, ch. 257, § 3-106; 1995, ch. 210, § 32.
ANNOTATIONS
The 1995 amendment,
effective July 1, 1995, in the first sentence, inserted "Uniform", inserted "and in proceedings to construe probated wills or determine heirs which concern estates that have not been and cannot now be open for administration" and substituted "Section 45-1-401 NMSA 1978" for "Section 1-401".
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Decree of court of domicile respecting validity or construction of will, or admitting it or denying its admission to probate, as conclusive as regards real estate in another state devised by will, 131 A.L.R. 1023.
21 C.J.S. Courts §§ 39 to 49.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 1 - GENERAL PROVISIONS › Section 45-3-109 - Statutes of limitation on decedent's claim for relief.

No statute of limitation running on a claim for relief belonging to a decedent which had not been barred as of the date of his death, shall apply to bar a claim for relief surviving the decedent's death sooner than four months after death. A claim for relief belonging to a decedent which, but for this section, would have been barred less than four months after death, is barred after four months unless the statute of limitation is otherwise tolled.
History:
1953 Comp., § 32A-3-109, enacted by Laws 1975, ch. 257, § 3-109.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
54 C.J.S. Limitations of Actions § 118.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 2 - VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO ADMINISTER; DEMAND FOR NOTICE › Section 45-3-202 - Appointment or testacy proceedings; conflicting claim of domicile in another state.

If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in New Mexico, and in a testacy or appointment proceeding after notice pending at the same time in another state, the district court of New Mexico must stay, dismiss or permit suitable amendment in, the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the proceeding in New Mexico.
History:
1953 Comp., § 32A-3-202, enacted by Laws 1975, ch. 257, § 3-202.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
1 C.J.S. Abatement and Revival § 16; 95 C.J.S. Wills §§ 321, 332.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 3 - INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS › Section 45-3-302 - Informal probate; duty of court; effect of informal probate.

Upon receipt of an application requesting informal probate of a will, the probate or the district court, upon making the findings required by Section 45-3-303 NMSA 1978, shall issue a written statement of informal probate if at least one hundred twenty hours have elapsed since the decedent's death. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal probate of a will renders the probate void.
History:
1953 Comp., § 32A-3-302, enacted by Laws 1975, ch. 257, § 3-302; 1976 (S.S.), ch. 37, § 7; 1978, ch. 159, § 5.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Law official comment to 3-302 UPC.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
79 Am. Jur. 2d Wills § 841.
Decree of court of domicile respecting validity or construction of will, or admitting it or denying its admission to probate, as conclusive as regards real estate in another state devised by will, 131 A.L.R. 1023.
95 C.J.S. Wills §§ 422, 574, 584.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 3 - INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS › Section 45-3-305 - Informal probate; court not satisfied.

The probate or the district court may decline application for informal probate of a will for any reason. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.
History:
1953 Comp., § 32A-3-305, enacted by Laws 1975, ch. 257, § 3-305; 1978, ch. 159, § 7.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Law official comment to 3-305 UPC.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
79 Am. Jur. 2d Wills § 841.
Person entitled to appeal from decree admitting will to probate or denying probate, 88 A.L.R. 1158.
Power and duty of probate court to set aside decree admitting forged instrument to probate as a will, 115 A.L.R. 473.
95 C.J.S. Wills § 497.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 3 - INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS › Section 45-3-306 - Informal probate; notice requirements.

A. The applicant shall give notice as described by Section 45-1-401 NMSA 1978 of his application for informal probate to any person demanding it pursuant to Section 45-3-204 NMSA 1978 and to any personal representative of the decedent whose appointment has not been terminated. No other notice of informal probate is required.
B. If an informal probate is granted, within 30 days thereafter the applicant shall give written information of the probate to the heirs and devisees. The information shall include the name and address of the applicant, the name and location of the court granting the informal probate, and the date of the probate. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the applicant. No duty to give information is incurred under this section if a personal representative is appointed who is required to give written information pursuant to the provisions of Section 45-3-705 NMSA 1978. An applicant's failure to give information as required by this section is a breach of the applicant's duty to the heirs and devisees but does not affect the validity of the probate.
History:
1953 Comp., § 32A-3-306, enacted by Laws 1975, ch. 257, § 3-306; 1995, ch. 210, § 34.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Law official comment to 3-306 UPC.
The 1995 amendment,
effective July 1, 1995, designated the existing provision as Subsection A; in the first sentence of Subsection A, substituted "shall" for "must", substituted "Section 45-1-401 NMSA 1978" for "Section 1-401" and "Section 45-3-204 NMSA 1978" for "Section 3-204"; and added Subsection B.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
80 Am. Jur. 2d Wills § 932.
95 C.J.S. Wills § 370.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 3 - INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS › Section 45-3-307 - Informal appointment proceedings; delay in order; duty of court; effect of appointment.

A. Upon receipt of an application for informal appointment of a personal representative (other than a special administrator as provided in Section 45-3-614 NMSA 1978), if at least one hundred twenty hours have elapsed since the decedent's death, the probate or the district court, after making the findings required by Section 45-3-308 NMSA 1978, shall appoint the applicant subject to qualification and acceptance. However, if the decedent was a nonresident, the probate or the district court shall delay the order of appointment until thirty days have elapsed since death unless the personal representative appointed at the decedent's domicile is the applicant, or unless the decedent's will directs that his estate be subject to the laws of New Mexico.
B. The status of personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created thereby, is subject to termination as provided in Sections 45-3-608 through 45-3-612 NMSA 1978, but is not subject to retroactive vacation.
History:
1953 Comp., § 32A-3-307, enacted by Laws 1975, ch. 257, § 3-307; 1976 (S.S.), ch. 37, § 8; 1978, ch. 159, § 8.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Law official comment to 3-307 UPC.
Jurisdictional effect of informal appointment.
— The district court had jurisdiction to enter a closing order absent an order entered on a formal petition for appointment challenging the informally appointed personal representative, since the status of personal representative and the powers and duties pertaining to the appointment are fully established by informal appointment, (45-3-307 NMSA 1978), and a personal representative may petition for an order of complete settlement of an estate at any time (45-3-1001 NMSA 1978).
In re Estate of Lopez
, 1987-NMCA-087, 106 N.M. 157, 740 P.2d 707.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative, 11 A.L.R.4th 638.
33 C.J.S. Executors and Administrators §§ 63, 72.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 3 - INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS › Section 45-3-308 - Informal appointment proceedings; proof and findings required.

A. In informal appointment proceedings, the probate or the district court must determine whether:
(1) the application for informal appointment of a personal representative is complete;
(2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
(3) the applicant appears from the application to be an interested person as defined in Paragraph (20) [(23)] of Subsection A of Section 45-1-201 NMSA 1978;
(4) on the basis of the statements in the application, venue is proper;
(5) any will to which the requested appointment relates has been formally or informally probated; but this requirement does not apply to the appointment of a special administrator;
(6) any notice required by Section 45-3-204 NMSA 1978 has been given; and
(7) from the statements in the application, from the contents of the probated will, if any, and from any nominations and renunciations pursuant to Section 45-3-203 NMSA 1978 that have been filed before or at the time of the application, the person whose appointment is sought has priority entitling him to the appointment.
B. Unless Section 45-3-612 NMSA 1978 controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in Subsection C of Section 45-3-610 NMSA 1978 has been appointed in New Mexico, that (unless the applicant is the domiciliary personal representative or his nominee) the decedent was not domiciled in New Mexico and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met.
C. If the applicant is the domiciliary personal representative and the decedent was not domiciled in New Mexico, informal appointment proceedings may be allowed.
History:
1953 Comp., § 32A-3-308, enacted by Laws 1975, ch. 257, § 3-308; 1978, ch. 159, § 9.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
The reference in Subsection A(3) of this section seemingly should be to Paragraph (23), and not Paragraph (20), of Subsection A of 45-1-201 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Delegation by will of power to nominate executor, 11 A.L.R.2d 1284.
Probate, in state where assets are found, of will of nonresident which has not been admitted to probate in state of domicile, 20 A.L.R.3d 1033.
Eligibility of foreign corporation to appointment as executor, administrator or testamentary trustee, 26 A.L.R.3d 1019.
Construction and operation of will or trust provision appointing advisors to trustee or executor, 56 A.L.R.3d 1249.
33 C.J.S. Executors and Administrators §§ 61, 62.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 3 - INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS › Section 45-3-309 - Informal appointment proceedings; court not satisfied.

The probate or the district court may decline an application for informal appointment of a personal representative for any reason. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.
History:
1953 Comp., § 32A-3-309, enacted by Laws 1975, ch. 257, § 3-309; 1978, ch. 159, § 10; 2011, ch. 124, § 45.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Law official comment to 3-309 UPC.
The 2011 amendment,
effective January 1, 2012, provided that the court may deny an application for an informal appointment of a personal representative.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Power of court to refuse letters testamentary to one named in will as executor, absent specific statutory disqualification, 95 A.L.R. 828.
Judgment or order in connection with appointment of executor or administrator as res judicata, as law of the case, or as evidence, on questions other than the validity of the appointment, 119 A.L.R. 594.
33 C.J.S. Executors and Administrators § 63.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 3 - INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS › Section 45-3-310 - Informal appointment proceedings; notice requirements.

The applicant must give notice as described by Section 1-401 [45-1-401 NMSA 1978] of his intention to seek an appointment informally to any person demanding it pursuant to Section 3-204 [45-3-204 NMSA 1978]. No other notice of an informal appointment proceeding is required, except that the personal representative shall give notice pursuant to the provisions of Section 3-705 [45-3-705 NMSA 1978].
History:
1953 Comp., § 32A-3-310, enacted by Laws 1975, ch. 257, § 3-310.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Failure of personal representative to file proof of publication of notice of appointment or notice to creditors within specified time as tolling statute of nonclaim, 42 A.L.R.2d 1218.
33 C.J.S. Executors and Administrators § 53.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 3 - INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS › Section 45-3-311 - Informal appointment unavailable in certain cases.

If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of New Mexico, and which is not filed for probate in the probate or the district court, the probate or the district court shall decline the application; however, such declination of informal probate is not an adjudication and does not preclude appointment in formal proceedings.
History:
1953 Comp., § 32A-3-311, enacted by Laws 1975, ch. 257, § 3-311; 1978, ch. 159, § 11.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
33 C.J.S. Executors and Administrators § 50.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 4 - FORMAL TESTACY AND APPOINTMENT PROCEEDINGS › Section 45-3-402 - Formal testacy or appointment proceedings; petition; contents.

A. Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the district court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will:
(1) contains the original will, unless excused under the provisions of Subsection B of this section;
(2) requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs; and
(3) contains the statements required for informal applications as stated in Subsection A of Section 3-301 [45-3-301 NMSA 1978] and the statements required by Paragraphs (1) through (3) of Subsection B of Section 3-301 [45-3-301 NMSA 1978].
B. If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will and why it is unavailable.
C. A petition for adjudication of intestacy and appointment of a personal representative must request a judicial finding and order that the decedent left no will and, determining the heirs, contain the statements required by Subsections A and D of Section 3-301 [45-3-301 NMSA 1978] and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of a personal representative, in which case, the statements required by Paragraph (2) of Subsection D of Section 3-301 [45-3-301 NMSA 1978] may be omitted.
History:
1953 Comp., § 32A-3-402, enacted by Laws 1975, ch. 257, § 3-402.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Law official comment to 3-402 UPC.
Law reviews.
— For survey, "Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration," see 6 N.M.L. Rev. 213 (1976).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
79 Am. Jur. 2d Wills § 842.
Establishment of will lost before testator's death, 34 A.L.R. 1304.
Proof of contents in establishment of lost will, 126 A.L.R. 1139.
Proof of nonrevocation in proceeding to establish lost will, 3 A.L.R.2d 949, 18 A.L.R.3d 606, 86 A.L.R.3d 980, 70 A.L.R.4th 323.
Who is resident within meaning of statute prohibiting appointment of nonresident executor or administrator, 9 A.L.R.4th 1223.
Adverse interest or position as disqualification for appointment of administrator, executor, or other personal representative, 11 A.L.R.4th 638.
Liability in damages for interference with expected inheritance or gift, 22 A.L.R.4th 1229.
Sufficiency of evidence of nonrevocation of lost will not shown to have been inaccessible to testator - modern cases, 70 A.L.R.4th 323.
95 C.J.S. Wills § 373.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 4 - FORMAL TESTACY AND APPOINTMENT PROCEEDINGS › Section 45-3-405 - Formal testacy proceedings; uncontested cases; hearings and proof.

A. If a petition in a formal testacy proceeding is unopposed, the district court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of Section 3-409 [45-3-409 NMSA 1978] have been met, or conduct a hearing in open court and require proof of the matters necessary to support the order requested.
B. If evidence concerning execution of a will which is not self-proved is necessary in uncontested cases, the affidavit or testimony of at least one of the attesting witnesses is required if he is within New Mexico, competent and able to testify. Otherwise, due execution of a will may be proved by other evidence.
C. If the will is self-proved in an uncontested case, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed, subject to rebuttal without the testimony of any witness, upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.
History:
1953 Comp., § 32A-3-405, enacted by Laws 1975, ch. 257, § 3-405.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Law official comment to 3-405 UPC.
Cross references.
— For general provisions concerning fraud,
see
45-1-106 NMSA 1978.
Use of circumstantial evidence to show undue influence.
— Where the only evidence is circumstantial, such evidence may be used to show the existence of undue influence.
Galvan v. Miller
, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961.
Existence of undue influence determined from circumstances of case.
Galvan v. Miller
, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 79 Am. Jur. 2d Wills § 842; 80 Am. Jur. 2d Wills § 1008.
95 C.J.S. Wills §§ 392, 393, 411, 422.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 4 - FORMAL TESTACY AND APPOINTMENT PROCEEDINGS › Section 45-3-408 - Formal testacy proceedings; will construction; effect of final order in another jurisdiction.

A final order of a court of another state determining testacy, the validity or construction of a will, made in a proceeding involving notice to and an opportunity for contest by all interested persons, must be accepted as determinative by the courts of New Mexico if it includes, or is based upon, a finding that the decedent was domiciled at his death in the state where the order was made.
History:
1953 Comp., § 32A-3-408, enacted by Laws 1975, ch. 257, § 3-408.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Law official comment to 3-408 UPC.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
95 C.J.S. Wills § 577.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 4 - FORMAL TESTACY AND APPOINTMENT PROCEEDINGS › Section 45-3-409 - Formal testacy proceedings; order; foreign will.

A. After the time required for any notice has expired, upon proof of notice, and after any hearing that may be necessary, if the district court finds that the testator is dead, venue is proper and that the proceeding was commenced within the limitation prescribed by Section 3-108 [45-3-108 NMSA 1978], it shall determine the decedent's domicile at death, his heirs and his state of testacy. Any will found to be valid and unrevoked shall be formally probated. Termination of any previous informal appointment of a personal representative, which may be appropriate in view of the relief requested and findings, is governed by Section 3-612 [45-3-612 NMSA 1978]. The petition shall be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead.
B. A will from a foreign jurisdiction which does not provide for probate of a will after death, may be proved for probate in New Mexico by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become operative under the law of the foreign jurisdiction.
History:
1953 Comp., § 32A-3-409, enacted by Laws 1975, ch. 257, § 3-409.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Law official comment to 3-409 UPC.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
79 Am. Jur. 2d Wills § 842.
95 C.J.S. Wills §§ 343, 348.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 4 - FORMAL TESTACY AND APPOINTMENT PROCEEDINGS › Section 45-3-410 - Formal testacy proceedings; probate of more than one instrument.

If two or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. If more than one instrument is probated, the order shall indicate what provisions control in respect to the nomination of a personal representative, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument. After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of Section 3-412 [45-3-412 NMSA 1978].
History:
1953 Comp., § 32A-3-410, enacted by Laws 1975, ch. 257, § 3-410.
ANNOTATIONS
Official comments.
—
See
Commissioners on Uniform State Law official comment to 3-410 UPC.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
79 Am. Jur. 2d Wills §§ 824, 842.
Incorporation into will of provisions of will of another person by reference thereto, 37 A.L.R. 1476.
Probate where two or more testamentary documents, bearing the same date or undated, are proffered, 17 A.L.R.3d 603.
95 C.J.S. Wills § 313.
2023 New Mexico Statutes › Chapter 45 - Uniform Probate Code › Article 3 - Probate of Wills and Administration › Part 4 - FORMAL TESTACY AND APPOINTMENT PROCEEDINGS › Section 45-3-411 - Formal testacy proceedings; partial intestacy.

If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent's estate is or may be partially intestate, the district court shall enter an order to that effect.
History:
1953 Comp., § 32A-3-411, enacted by Laws 1975, ch. 257, § 3-411.
ANNOTATIONS
Cross references.
— For burdens of proof in contested cases,
see
45-3-407 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
80 Am. Jur. 2d Wills § 870.
May parts of will be upheld notwithstanding failure of other parts for lack of testamentary mental capacity or undue influence, 64 A.L.R.3d 261.
95 C.J.S. Wills §§ 317, 322.