Petition to Probate a Will Requirements in New Mexico

At a glance

Requirements one by one

Informal and formal routes

New Mexico separates informal probate from formal testacy. An interested person may submit a verified informal application to the probate or district court. A formal testacy case is district-court litigation seeking an order after notice and hearing. Probate and appointment can be combined, but they remain distinct requests under NMSA 1978 § 45-3-107.

Venue is the county of domicile at death. For a non-New Mexico domiciliary, it is any county containing the decedent's property (§ 45-3-201).

Filing contents and the will

NMSA 1978 § 45-3-301 requires the informal applicant's interest, the decedent's death, age, and domicile, reasonably ascertainable spouse, children, heirs, devisees and minor ages, nonresident venue, existing representatives, demands for notice, and timeliness. The will application adds the original-or-copy status, execution belief, reasonable-diligence revocation check, and last-will belief. A combined appointment application identifies the requested appointee and priority.

The original must be in the court's possession or accompany the informal application; an authenticated copy already probated elsewhere is the stated alternative. A formal petition ordinarily contains the original. If neither the court nor petitioner has it and no authenticated foreign-probate copy is filed, § 45-3-402 requires the will's contents and the reason it is unavailable.

Delivery and deadline

A custodian must deliver the will as soon as informed of the testator's death to someone able to secure probate or, if none is known, an appropriate court. NMSA 1978 § 45-2-516 gives no fixed number of days but permits damages, compulsion, and contempt consequences.

The ordinary ultimate limit is three years after death. Section 45-3-108 lists specific tardy routes, so a filing after three years requires matching one of those exceptions rather than treating the limit as optional.

Proof

Informal probate may be especially streamlined. Under § 45-3-303(C), a will with the required signatures and an attestation clause showing statutory execution may be probated without further proof. Otherwise the court may presume execution from an apparently proper will or accept a sworn statement or affidavit from a person with knowledge, whether or not that person witnessed the will.

Formal proof depends on the will and dispute. A self-proved will receives the statutory execution presumptions without witness testimony, subject to fraud or forgery. If execution evidence for a non-self-proved will is necessary, one available, competent New Mexico attesting witness supplies affidavit or testimony in an uncontested case and testimony in a contested case; otherwise other evidence may prove execution (§§ 45-3-405, -406).

Notice and objections

Informal probate does not require broad advance notice. The applicant gives advance notice to a demandant and any existing personal representative. If probate is granted, the applicant gives written information within 30 days to heirs and devisees unless an appointed personal representative has the separate information duty (§ 45-3-306).

Formal probate requires a hearing. Notice goes to the surviving spouse, children, heirs, devisees and personal representatives named in relevant wills, an existing personal representative, and demandants; unknown or unlocatable interested people receive publication. Ordinary § 45-1-401 notice uses mailing at least 14 days before the hearing, civil-rules service, or three weekly publications with the last at least 10 days before hearing. An opponent must plead the objections (§ 45-3-404).

Representative, acceptance, bond, and letters

The person given priority by a probated will ranks first. A person under the age of majority is unqualified, and the district court may find a person unsuitable in formal proceedings (§ 45-3-203).

Before letters, the appointee files a statement accepting the duties and any required bond. Informal appointments ordinarily need no bond unless the appointee is a special administrator, the will requires bond, or an interested-person demand results in bond. In formal proceedings the court may require bond; a will waiver generally controls unless an interested person requests bond and the court orders it. The court may also dispense with a bond the will required (§§ 45-3-601, -603). NMSA 1978 § 45-3-605 permits the written demand by an apparently interested person or creditor whose interest or claim exceeds $7,500.

What trips people up

An informal application and a formal petition are not interchangeable. They use different courts, notice, hearing, and proof structures.

Informal does not mean no notice at all. Demandants and an existing representative receive advance notice, and heirs/devisees receive post-probate information unless the appointed representative takes over that duty.

Three years is the ordinary outside limit, not an absolute statement that no later proceeding is possible. Section 45-3-108 contains narrow exceptions and restricted late-proceeding consequences.

Common questions

Can informal probate occur immediately after death?

No. NMSA 1978 § 45-3-302 requires at least 120 hours after death before the written statement of informal probate issues.

Must the original will be filed?

For original informal probate, the original must be with the court or accompany the application. Formal probate likewise ordinarily includes the original, but § 45-3-402 states what the petition must say when it is unavailable.

Is bond always required?

No. Informal appointments generally have no bond unless a statutory exception applies. Formal bond is discretionary and sensitive to the will and any interested-person request (§ 45-3-603).

Statutes and sources

• NMSA 1978 §§ 45-3-107 and 45-3-201 — combined proceedings and venue.
• NMSA 1978 § 45-3-301(A)-(C), (G) — informal application contents and verification.
• NMSA 1978 §§ 45-3-302 and 45-3-303(A), (C) — informal timing, findings, and proof.
• NMSA 1978 §§ 45-2-515 and 45-2-516 — lifetime deposit and custodian delivery.
• NMSA 1978 § 45-3-108(A) — ordinary three-year outside limit and exceptions.
• NMSA 1978 §§ 45-3-401(A)-(B) and 45-3-402(A)-(B) — formal testacy and petition contents.
• NMSA 1978 §§ 45-3-306, 45-3-403, and 45-3-404 — informal and formal notice and objections.
• NMSA 1978 § 45-1-401(A)-(C) — notice methods and timing.
• NMSA 1978 §§ 45-3-405 and 45-3-406 — formal proof.
• NMSA 1978 §§ 45-3-203(A), (C), (F), 45-3-601, and 45-3-603; § 45-3-605 — appointment priority, qualification, acceptance, and bond.

All quoted sections are from the official current Chapter 45 master PDF, accessed 2026-08-08.