2018 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 3 - Probate of Wills and Administration
Section 45-3-911 - Partition for purpose of distribution.
A. When two or more heirs or devisees are entitled to distribution of undivided interests in any real or personal property of the estate, the personal representative or one or more of the heirs or devisees may petition the district court prior to the formal or informal closing of the estate to make partition.
B. After notice to the interested heirs or devisees, the district court shall partition the property pursuant to the provisions of the Uniform Partition of Heirs Property Act [42-5A-1 through 42-5A-13 NMSA 1978].
C. The district court may direct the personal representative to sell any property pursuant to the provisions of the Uniform Partition of Heirs Property Act.
History: 1953 Comp., § 32A-3-911, enacted by Laws 1975, ch. 257, § 3-911; 2017, ch. 41, § 19.
The 2017 amendment, effective January 1, 2018, amended the section to conform with the Uniform Partition of Heirs Property Act; in Subsection B, after "partition the property", added "pursuant to the provisions of the Uniform Partition of Heirs Property Act"; and in Subsection C, after "sell any property", deleted "which cannot be partitioned without prejudice to the interested heirs and devisees and which cannot conveniently be allotted to any one party" and added "pursuant to the provisions of the Uniform Partition of Heirs Property Act".
Official comments. — See Commissioners on Uniform State Law official comment to 3-911 UPC.
Jurisdiction to liquidate business. — District courts sitting in probate possess general civil jurisdiction in formal probate proceedings; therefore, a trial court had jurisdiction to liquidate a business pursuant to either 45-3-911 or 53-16-16 NMSA 1978. Harrington v. Bannigan, 2000-NMCA-058, 129 N.M. 266, 5 P.3d 1070.
Where property at issue consists of a single-family home, it is unlikely the property could be partitioned without prejudice to one of the heirs, nor can it be allotted to one heir, where there are no other assets in the estate. Therefore, unless the parties are able to reach a settlement, the court has two options: the parties may retain undivided interests in the property as tenants-in-common, or the property may be sold and the proceeds divided. In re Estate of Lopez, 1987-NMCA-087, 106 N.M. 157, 740 P.2d 707.
No forced sell. — There is no statutory authority for the court to force one heir to sell her undivided interest to the other. In re Estate of Lopez, 1987-NMCA-087, 106 N.M. 157, 740 P.2d 707.
Partition determined by probate court. — Where an heir with an undivided property interest requests partition, it should be determined by the court conducting the probate proceedings, rather than in a separate action. In re Estate of Lopez, 1987-NMCA-087, 106 N.M. 157, 740 P.2d 707.
Law reviews. — For 1986-88 survey of New Mexico law of real property, see 19 N.M.L. Rev. 751 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of executor or administrator to bring proceedings for partition of real property, 57 A.L.R. 573.
Testamentary provision operating to prohibit or postpone partition, 85 A.L.R. 1321.
Rights of surviving spouse and children in proceeds of partition sale of homestead in decedent's estate, 6 A.L.R.2d 515.
Pleading in partition action to authorize incidental relief, 11 A.L.R.2d 1449.
Timber rights as subject to partition, 21 A.L.R.2d 618.
