2021 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 3 - Probate of Wills and Administration
Section 45-3-803 - Limitations on presentation of claims.

Universal Citation: NM Stat § 45-3-803 (2021)

A. All claims against a decedent's estate that arose before the death of the decedent, including claims of the state and any political subdivision of the state, whether due or to become due, absolute or contingent, liquidated or unliquidated or founded on contract, tort or other legal basis, if not barred earlier by another statute of limitations or nonclaim statute, are barred against the estate, the personal representative and the heirs, devisees and nonprobate transferees of the decedent unless presented within the earlier of the following:

(1) one year after the decedent's death; or

(2) the time provided by Subsection B of Section 45-3-801 NMSA 1978 for creditors who are given actual notice and the time provided in Subsection A of Section 45-3-801 NMSA 1978 for all creditors barred by publication.

B. A claim described in Subsection A of this section that is barred by the nonclaim statute of the decedent's domicile before the giving of notice to creditors in this state is barred in this state.

C. All claims against a decedent's estate that arise at or after the death of the decedent, including claims of the state and any political subdivision of the state, whether due or to become due, absolute or contingent, liquidated or unliquidated or founded on contract, tort or other legal basis, are barred against the estate, the personal representative and the heirs and devisees of the decedent unless presented as follows:

(1) a claim based on a contract with the personal representative within four months after performance by the personal representative is due; or

(2) any other claim within the later of four months after it arises or the time specified in Paragraph (1) of this subsection.

D. Nothing in this section affects or prevents:

(1) any proceeding to enforce any mortgage, pledge or other lien upon property of the estate;

(2) to the limits of the insurance protection only, a proceeding to establish liability of the decedent or the personal representative for which the decedent or personal representative is protected by liability insurance; or

(3) collection of compensation for services rendered and reimbursement for expenses advanced by the personal representative or by the attorney or accountant for the personal representative of the estate.

History: 1953 Comp., § 32A-3-803, enacted by Laws 1975, ch. 257, § 3-803; 1993, ch. 174, § 73; 2011, ch. 124, § 47; 2016, ch. 69, § 716.


Official comments.See Commissioners on Uniform State Law official comment to 3-803 UPC.

Compiler's notes. — This section includes within its scope some of the functions of former 31-8-3, 1953 Comp.

The 2016 amendment, effective July 1, 2016, in Paragraph 2 of Subsection A, after the first occurrence of "Subsection", deleted "A" and added "B", and after the second occurrence of "Subsection", deleted "B" and added "A".

The 2011 amendment, effective January 1, 2012, provided that claims against nonprobate transferees are barred if not timely presented.

The 1993 amendment, effective July 1, 1993, rewrote this section to the extent that a detailed comparison is impracticable.

Rule 6(b), N.M.R. Civ. P. (see Rule 1-006B NMRA) may not be applied to extend time limitation of Subsection A of this section because such an extension would be inconsistent with the barring of a disallowed claim unless proceedings were commenced not later than 60 days after mailing of notice of disallowance. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554.

Purpose of statutes permitting claims against estates and appeals therefrom. — The enactments providing for claims against estates and appeals from orders which allow or reject them complement each other, and are designed to speed the administration and closing of estates. Levers v. Houston, 1945-NMSC-017, 49 N.M. 169, 159 P.2d 761.

Requirements of this section (31-8-3, 1953 Comp., repealed) are mandatory, and neither heirs nor administrator can waive them, nor can their conduct result in an estoppel which prevents the bar of the statute. In re Landers' Estate, 1929-NMSC-096, 34 N.M. 431, 283 P. 49.

Mandatory requirements. — Neither the heirs nor the personal representative can be estopped from asserting or can waive the mandatory requirements of the nonclaim statute, which is comprised of this section and 45-3-804 and 45-3-806 NMSA 1978. In re Estate of Mayfield, 1989-NMSC-016, 108 N.M. 246, 771 P.2d 179.

Applicability of filing provisions. — The filing provisions in Subsections A and B apply only to claims against the estate; claims that will be paid by insurance are not considered to be claims against the estate. Corlett v. Smith, 1988-NMCA-067, 107 N.M. 707, 763 P.2d 1172.

Inapplicable to estate devisees. — This section did not provide the controlling relevant limitations where petitioners were not creditors, but devisees of the estate. Accordingly, the relevant limitations period was found in 45-3-1006 NMSA 1978. In re Estate of Gardner, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.

Statute of limitations does not bar recovery of administration expenses. — No judgment could have been entered thereon until appellant's final report had been filed and accounting had thereon. In re Kenney's Estate, 1937-NMSC-069, 41 N.M. 576, 72 P.2d 27.

Timely filing of claims against a decedent's estate is mandatory, and, if not timely filed, the claims are barred as a matter of law. Bowman v. Butler, 1982-NMCA-108, 98 N.M. 357, 648 P.2d 815.

Section's requirements not preempted by wrongful death statutes. — The burden of establishing a timely presentment of a claim against an estate rests upon the claimant, and nothing in the statutes allowing recovery for wrongful death, 41-2-1 to 41-2-4 NMSA 1978, expresses a legislative intent to create an exception to this section. Corlett v. Smith, 1987-NMCA-099, 106 N.M. 207, 740 P.2d 1191.

A cause of action against a personal representative for conversion, breach of fiduciary duty and right of replevin does not arise until the termination of the representative's appointment. Bowman v. Butler, 1982-NMCA-108, 98 N.M. 357, 648 P.2d 815.

Actions against a deceased personal representative on his surety bond are exempted from the time limitations imposed by this section. These claims are governed by 37-1-8 NMSA 1978. Bowman v. Butler, 1982-NMCA-108, 98 N.M. 357, 648 P.2d 815.

Redesignation of contract claim as fraud insufficient to change limitation. — The amendment or identification of a claim as one of fraud rather than in contract, after the two-month period has expired, is insufficient to change the time period from two months under Subsection A to four months under Subsection B. In re Estate of Oney, 1981-NMCA-026, 95 N.M. 640, 624 P.2d 1037.

Extension of time limits not authorized. — Section 45-3-804C NMSA 1978 does not deal with the time limits for presenting claims under this section and does not authorize the trial court to extend this section's time limits. In re Estate of Oney, 1981-NMCA-026, 95 N.M. 640, 624 P.2d 1037.

Workmen's compensation claims subject to own statute of limitations. — Workmen's compensation one-year statute of limitations, not Uniform Probate Code's four-month limitation, applied to workmen's compensation action filed against employer, a sole proprietorship being run by personal representative after death of sole proprietor. Lucero v. Northrip Logging Co., 1984-NMCA-061, 101 N.M. 420, 683 P.2d 1342.

Exception to statute of limitations. — Claim against executor for superadded liability on bank stock owned by testator, on account of insolvency of state bank occurring after testator's death, is not governed by statutory requirements for filing in probate court nor by statute of nonclaim. Tierney v. Shakespeare, 1930-NMSC-009, 34 N.M. 501, 284 P. 1019.

Claims expiring on Sunday may be filed following Monday. — This section is a continuing statute, and if time within which claims against estate of deceased person must be filed expires on Sunday, the act may be performed the following Monday. O'Brien v. Wilson, 1921-NMSC-022, 26 N.M. 641, 195 P. 803.

Effect of section on contingent claims. — A contingent claim by a surety against estate of its principal who breached the condition of his official bond to recover indemnity accrued when the principal breached the bond, and such claim is barred by statute of limitations when it is not filed within six months (now two months) after first publication of notice of appointment of estate representative. Fidelity & Deposit Co. v. Hobbs, 144 F.2d 5 (10th Cir. 1944).

Setoff claims. — Where accounts are owing by an individual to an estate and in turn by the estate to the individual, the claim by the individual must be filed within the statutorily permitted time, and if approved the claim can be set off against the account owing to the estate. Counts v. Woods, 1942-NMSC-014, 46 N.M. 273, 127 P.2d 398.

Claim filed two years after death. — A claim against an estate not filed with the clerk of the probate court until more than two years after death of decedent was barred by this statute of limitations (31-8-3, 1953 Comp., repealed). Janes v. Brunswick, 1895-NMSC-017, 8 N.M. 105, 42 P. 72, modified, 1896-NMSC-001, 8 N.M. 345, 45 P. 878.

"Limits of insurance protection". — For the purposes of former Subsection C(2), "protection" should be considered the potential right to payment of a claim against the insurance company. Corlett v. Smith, 1988-NMCA-067, 107 N.M. 707, 763 P.2d 1172.

Law reviews. — For annual survey of New Mexico law relating to estates and trusts, see 12 N.M.L. Rev. 363 (1982).

For annual survey of New Mexico law relating to estates and trusts, see 13 N.M.L. Rev. 395 (1983).

For annual survey of New Mexico law of estates and trusts, see 19 N.M.L. Rev. 669 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Prosecution of action or claim against estate by beneficiary as forfeiture of share in will by virtue of clause therein so providing, 30 A.L.R. 1014.

Necessity of presenting claim to executor or administrator before bringing suit, 34 A.L.R. 362.

Action on contingent claim, presentation of claim as condition precedent, 34 A.L.R. 372.

Presentation of claim for funeral expenses to executor or administrator, 34 A.L.R. 375.

Applicability of nonclaim statute to claims arising under contract executory at time of death, 47 A.L.R. 896.

Effect of recovery of judgment on unfiled or abandoned claim after expiration of time allowed for filing claim against estate, 60 A.L.R. 736.

Bar of statute of nonclaim of decedent's domicile as affecting assertion of claim elsewhere, 72 A.L.R. 1030.

Nonclaim statute as applied to real estate mortgage or mortgage debt, 78 A.L.R. 1126.

Superseded liability of stockholders as within statute of nonclaim, 87 A.L.R. 494.

Necessity of filing claim under Workmen's Compensation Act against estate of deceased employer, 94 A.L.R. 889.

Claim on decedent's contract of guaranty, surety ship or endorsement as contingent, 94 A.L.R. 1155.

Applicability of statute of nonclaim as between surviving partner and estate of deceased partner, 96 A.L.R. 449, 157 A.L.R. 1114.

Necessity of presenting claim against decedent's estate as affected by executor's or administrator's personal duty or obligation to claimant, 103 A.L.R. 337.

Right of nonresident creditor of decedent's estate to file claim in ancillary administration, 106 A.L.R. 893.

Claims for taxes as within contemplation of statute requiring presentation of claims against decedents' estates, 109 A.L.R. 1370.

Nonclaim statute as governing claim barred, subsequent to death of obligor, by general statute of limitations, 112 A.L.R. 289.

Necessity of presenting claim against decedent's estate for specific performance of contract to make will in favor of another or to will latter a specified sum or property, 113 A.L.R. 1070.

Presentation of claim against deceased debtor's estate as condition of action to enforce judgment lien, 114 A.L.R. 1167.

Presentment of claim or notice to one or more coadministrators, coexecutors, coguardians or cotrustees as presentment or notice to all, 115 A.L.R. 390.

Effect of statement of claim against decedent's estate setting out debt apparently barred by statute of limitations, 119 A.L.R. 426.

Filing claim against estate of decedent as affecting or precluding other remedies against estate, 120 A.L.R. 1225.

Claim of government or subdivision thereof as within provision of nonclaim statute, 34 A.L.R.2d 1003.

Availability of replevin or similar possessory action to one not claim as heir, legatee, or creditor of decedent's estate, against personal representative, 42 A.L.R.2d 418.

Amendment of claim against decedent's estate after expiration of time for filing claims, 56 A.L.R.2d 627.

Necessity of presenting spouse's claim under separation agreement to personal representative of other spouse's estate, 58 A.L.R.2d 1283.

Application of nonclaim statute to claim for unmatured payments under land contract, 99 A.L.R.2d 275.

Running of statute of limitations as affected by doctrine of relation back of appointment of administrator, 3 A.L.R.3d 1234.

Tort claim as within nonclaim statutes, 22 A.L.R.3d 493.

Delay in appointing administrator or other representative, effect on cause of action accruing at or after death of person in whose favor it would have accrued, 28 A.L.R.3d 1141.

Presentation of claim to executor or administrator as prerequisite of its availability as counterclaim or setoff, 36 A.L.R.3d 693.

Claims for expenses of last sickness or for funeral expenses as within contemplation of statute requiring presentation of claims against decedent's estate, or limiting time for bringing action thereon, 17 A.L.R.4th 530.

What constitutes rejection of claim against estate to commence running of statute of limitations applicable to rejected claims, 36 A.L.R.4th 684.

Limitations of actions applicable to action by trustees of employee benefit plan to enforce delinquent employer contributions under ERISA (29 USCS § 1132(a)), 90 A.L.R. Fed. 374.

34 C.J.S. Executors and Administrators § 404.

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