New Mexico: Petition to Probate a Will Requirements

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.