Is a Will required to go through probate if there is no real property or securities involved?

UPDATED: Sep 6, 2011

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Is a Will required to go through probate if there is no real property or securities involved?

My father has only a checking account (in his name or my name), a car (in his name or my name) and household personal property. He has a Will directing disposition of the household personal property. Will NM law require probate in this type of situation?

Asked on September 6, 2011 under Estate Planning, New Mexico


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Under NM law there is an out-of-court procedure that allows for probate to be skipped altogether if the value of all the assets left behind if the value of the entire estate, less liens and encumbrances, is $30,000 or less. The person who is to inherit a particular asset must prepare a short document, stating that they are entitled to the asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property (for example, the  bank where your father had an account) gets the affidavit and a copy of the death certificate, it will release the asset. 

Additionally, NM has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the procedure. If the court authorizes the executor to distribute the assets, it is a less formal and complicated than regular probate. The simplified small estate process can be used if the value of the entire estate, less liens and encumbrances, doesn't exceed personal property allowance, family allowance, costs of administration, funeral expenses, and medical expenses of the last illness.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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