Small Estate Affidavit – New Mexico

As an Albuquerque probate attorney I believe the value of the small estate affidavit is clear. The small estate affidavit allows a spouse or other heir of the deceased person (“decedent”) to present the affidavit to the holder of the property of the decedent (such as a bank where the decedent had a bank account) to recover said property. The small estate affidavit can only be used with estates smaller than $50,000. The small estate affidavit is important because it simplifies the transfer of the decedent’s assets, and it is applicable to a large number of estates, at least compared to the number of “large” estates in New Mexico; the fact that the amount has increased to $50,000 (as of 2012) means that it will only apply to more estates owing to the fact that more estates will thus be made eligible. The small estate affidavit cannot be used to perfect title in real estate, (meaning that it cannot be used to transfer the decedent’s interest in a particular piece of real estate). There is a mechanism that can be used to transfer real property without the necessity of probate called a homestead affidavit, but the homestead affidavit only applies to surviving spouses. If an estate has real property to transfer, then a probate, proof of authority, or ancillary probate is required.

The small estate affidavit arises from New Mexico Statutes Annotated §§ 45-3-1201 to 45-3-1206, and provides as follows:

“Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor 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 days have elapsed since the death of the decedent;
3. No application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; and
4. The claiming successor is entitled to payment or delivery of the property.”

In summary, anyone that transfers or turns over property to the holder of the small estate affidavit is released and discharged to the same extent as though that person dealt with the personal representative of the estate. The small estate affidavit provides efficiency to the probate system and allows for more timely transfers of property and recovery of debts. One example of small estate affidavit being used for efficiency reasons is the transfer of title to an automobile. If the person who owes the decedent refuses to turn over the property at issue after a small estate affidavit has been presented, legal action can be initiated against this person. If you are in need of a small estate affidavit in New Mexico, it is highly recommended that you contact a New Mexico probate attorney to assist you with your legal matter.