2021 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 3 - Probate of Wills and Administration
Part 1 - GENERAL PROVISIONS
Section 45-3-101 - Devolution of estate at death; administration on deaths of husband and wife.

A. The power of a person to leave property by will and the rights of creditors, devisees and heirs to the person's property are subject to the restrictions and limitations contained in Chapter 45, Article 3 NMSA 1978 to facilitate the prompt settlement of estates.

B. Upon the death of a person, the person's separate property and the person's share of community property devolves:

(1) to the persons to whom the property is devised by the person's last will;

(2) to those indicated as substitutes for them in cases involving revocation, lapse, disclaimer or other circumstances pursuant to Chapter 45, Article 2 NMSA 1978 affecting the devolution of testate estates; or

(3) in the absence of testamentary disposition, to the person's heirs or to those indicated as substitutes for them in cases involving revocation, lapse, disclaimer or other circumstances pursuant to Chapter 45, Article 2, Parts 3, 4, 10 and 11 NMSA 1978 affecting the devolution of intestate estates.

C. The devolution of separate property and the decedent's share of community property is subject to rights to the family allowance and personal property allowance, to rights of creditors and to administration as provided in Chapter 45, Article 3 NMSA 1978. The surviving spouse's share of the community property is subject to administration until the time for presentation of claims has expired, and thereafter only to the extent necessary to pay community claims.

History: 1953 Comp., § 32A-3-101, enacted by Laws 1975, ch. 257, § 3-101; 2011, ch. 124, § 42.

Cross references. — For notice to creditors, see 45-3-801 NMSA 1978.

For statutes of limitations, see 45-3-802 NMSA 1978.

For distribution to person under disability, see 45-3-915 NMSA 1978.

The 2011 amendment, effective January 1, 2012, in Subsection A, changed the statutory reference to Chapter 45, Article 3 NMSA 1978; in Subsection B, changed the statutory reference to Chapter 45, Article 2 NMSA 1978; and in Subsection C, changed the statutory reference to Chapter 45, Article 3 NMSA 1978.

Construction of will. — Statutory language providing that the devolution of separate property and decedent's share of community property are subject to rights to the family allowance and personal property allowance appears to place the statutory allowances on a level that supersedes testator intent. Brito v. Jewell, 2001-NMCA-008, 130 N.M 93, 18 P.3d 334.

Proceedings for (now informal) probate of a will are in rem. C. de Baca v. Baca, 1964-NMSC-006, 73 N.M. 387, 388 P.2d 392.

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).

Equitable interest in real estate resulting from sale may be devised by will and in case of intestacy passes to his heirs and not to his administrator. Gregg v. Gardner, 1963-NMSC-223, 73 N.M. 347, 388 P.2d 68.

Testamentary transfers involuntary and direct. — Since the stock restriction on the testator's stock in a closely-held corporation related to voluntary transfers by the stockholder and not to involuntary transfers by law such as testamentary transfers, the stock restriction did not prohibit the direct transfer of stock to the beneficiary according to the stockholder's will. Kerr v. Porvenir Corp., 1994-NMCA-171, 119 N.M. 262, 889 P.2d 870, cert. denied, 119 N.M. 168, 889 P.2d 203.

Realty passes directly to the heir or devisee and the administrator does not take the same into his possession unless there is no heir or devisee present to care for it and collect the rentals. Conley v. Wikle, 1960-NMSC-009, 66 N.M. 366, 348 P.2d 485.

Executory contract for land. — It is settled in New Mexico that real estate owned by a decedent descends upon his death to his heirs and not to his administrators; and it is further settled that the purchaser under a real estate contract has acquired a property interest in land of such a character that it descends to his heirs and not to his administrators, the trial court therefore erred in allowing the administrator of the purchaser's estate a credit against the purchase price as damages for failure of the vendor to deliver possession of the property, since it was the heirs who had the right to possession at the moment the decedent died. Keirsey v. Hirsch, 1953-NMSC-112, 58 N.M. 18, 265 P.2d 346, superseded by statute, Sims v. Sims, 1996 NMSC 78, 122 N.M. 618, 930 P.2d 153.

Law reviews. — For article, "The Use of Revocable Inter Vivos Trusts in Estate Planning," see 1 N.M.L. Rev. 143 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills § 827.

Liability for administration expenses of spouse electing against will, 89 A.L.R.3d 315.

Testamentary direction to devisee to pay stated sum of money to third party as creating charge or condition or as imposing personal liability on devisee for nonpayment, 54 A.L.R.4th 1098.

41 C.J.S. Husband and Wife § 184 et seq.; 94 C.J.S. Wills § 3.