TN 13 (09-14)

GN 02315.069 New Mexico Small Estates

A. Background on the New Mexico small estate statute

Sections 45-3-1201 and 45-3-1202 of the New Mexico Uniform Probate Code contain provisions for the collection of property by affidavit. Sections 45-3-1203 and 45-3-1204 provide a summary administration procedure for small estates.

B. New Mexico affidavit procedure for small estates

New Mexico law permits collection and distribution of small estates under $50,000 by affidavit. Section 45-3-1201 of the New Mexico Uniform Probate Code requires that after 30 days have elapsed since the decedent’s death, any person indebted to the decedent must make payment of the indebtedness to a person claiming to be the decedent’s successor upon being presented an affidavit that meets the requirements discussed in GN 02315.069B.1. in this section.

1. Affidavit requirements

The successor or someone on behalf of the successor must submit an affidavit stating that:

  1. The value of the entire estate, wherever located, less liens and encumbrances, does not exceed fifty thousand dollars ($50,000);

  2. Thirty (30) days have elapsed since the decedent’s death;

  3. No application or petition for a personal representative’s appointment is pending or has been granted in any jurisdiction; and

  4. The claiming successor is entitled to payment or delivery of the property.

2. Policy of good acquittance and the effect of the affidavit under New Mexico law

An underpayment is the difference in the beneficiary’s favor between the amount the Social Security Agency (SSA) paid to a beneficiary and the amount SSA actually owed the beneficiary. For more information about underpayments, see 20 C.F.R. § 404.504. An individual provides “good acquittance” to SSA when SSA’s payment of an underpayment to that individual relieves SSA from any further liability for payment. This means that the individual has attested that there is no one of higher priority who could claim an underpayment and SSA has determined this to be true. For more information about good acquittance, see 20 C.F.R. § 404.503(e) and GN 02301.030C.

Section 45-3-1202 of the New Mexico Uniform Probate Code provides that the person paying the successor pursuant to an affidavit is discharged and released to the same extent as if the person dealt with the decedent’s personal representative. The person is not required to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, payment may be compelled by judicial process. The person to whom payment is made is answerable and accountable for the property to any personal representative of the estate or any other person having a superior right.

C. New Mexico summary administration for small estates

1. Procedure for summary administration

The summary administrative procedure for small estates under section 45-3-1203 of the New Mexico Uniform Probate Code provides that if it appears from the inventory and appraisal that the value of the entire estate, less liens and encumbrances, does not exceed the family allowance (currently $30,000, pursuant to section 45-2-402), personal property allowance (currently $15,000, pursuant to section 45-2-403), costs and expenses of administration, reasonable and necessary medical and hospital expenses of the decedent’s last illness, and reasonable funeral expenses, then the personal representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in section 45-3-1204.

2. Closure of estate following summary administration

Section 45-3-1204 of the New Mexico Uniform Probate Code provides that unless prohibited by order of the New Mexico state district court and except for estates being administered by supervised personal representatives, a personal representative may close an estate administered under the summary procedures of section 45-3-1203 by filing with the court, at any time after disbursement and distribution of the estate, a verified statement stating that:

  1. To the personal representative’s best knowledge, the value of the entire estate, less liens and encumbrances, did not exceed the family allowance, personal property allowance, costs and expenses of administration, reasonable necessary medical and h