When a loved one passes away, family members left behind must cope with practical matters like funeral arrangements and managing the affairs of a decedent’s estate while coping with profound grief.  Effective Estate Planning can make disposition of one’s estate faster, less expensive and more efficient so that the burden on grieving loved ones is minimized.  Sometimes people never get around to establishing an estate plan, which typically makes things more complicated because probate is necessary.  If a decedent has an estate with a relatively small net worth, there is an expedited non-probate process that can speed up the distribution of assets and avoid the costs associated with probate.

Historically, this process was extremely limited in application because it could not be applied if the estate included real property (real estate) and the net value of the estate was under $30,000.  The maximum threshold for the value of the estate was increased to $50,000 in 2012 so that more beneficiaries of small estates can utilize this efficient process for distributing the assets in a small estate.

This process involves using a Small Estate Affidavit, which is a short document signed under penalty of perjury attesting to certain facts.  The affidavit must indicate that the person entitled to the property through state inheritance law or other legal authority is the person lawfully entitled to the property of the decedent.  This method of handling a small estate completely eliminates the probate process because the party claiming the right to an asset simply presents the affidavit and death certificate for the decedent to the financial institution or entity that holds the asset.

This special non-probate form of disbursing assets may be utilized in two situations under New Mexico law:

Estate Under $50,000: If the entire net value of the estate after deducting liabilities, such as encumbrances and liens is $50,000 or less, this process may be employed.  While the process is quick because no probate process is required, there is a thirty day waiting period before a Small Estate Affidavit may be used to claim an asset.

Spouse Claiming Community Property Residence: If a husband or wife owned a principle residence with his or her deceased spouse, the surviving spouse may present an affidavit with the county clerk to claim the community property interest of the decedent spouse.  The home must have a property tax valuation of half a million dollars or less to qualify for this procedure of distribution.  The mandatory waiting period for using this process is six (6) months.

The above information is designed to illustrate general principles of law and does not constitute a specific legal opinion on individual cases. If you have questions about estate planning or the probate process, the New Mexico Estate Planning Law Firm of Jay Goodman and Associates offers a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your options.  Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights.


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