Estate Planning in New Mexico
Community property law, a streamlined probate code, and no state estate tax. The plan still has to be built for the worst day.
New Mexico is a community property state with no state estate tax and no inheritance tax. Only the federal estate tax applies, and at $15 million per person in 2026, the great majority of families will never owe a dollar of it.
What actually decides your family's outcome in New Mexico is characterization — what counts as community versus separate property — and coordination: making sure your will, your deeds, your beneficiary designations, and your trust (if you have one) all agree with each other. Most of the damage we see comes not from missing documents, but from documents that contradict each other.
How New Mexico is different
Community property. Property acquired during marriage is presumed community, owned 50/50. Property owned before marriage, plus gifts and inheritances, is separate — unless commingled. At death, each spouse's half of the community property plus all separate property passes by will, trust, or intestacy. For couples who moved to New Mexico from a common-law state, re-characterizing property is often the first and most important step.
Uniform Probate Code. New Mexico adopted the UPC, so its probate process is more standardized — and often simpler — than in many states. Informal probate is common. It is still a public court process on a court timetable, which is why most of our New Mexico plans are built to avoid it where practical.
Transfer-on-death deeds. Under NMSA 1978, §§ 45-6-401 to 45-6-417, you can record a deed naming a beneficiary to receive your New Mexico real property at death — no probate for that parcel. You keep full control while alive, and you can revoke it. It must be recorded with the county clerk before your death.
No state death taxes. New Mexico imposes no estate or inheritance tax. Planning here is about control, guardianship, probate avoidance, and incapacity — not about dodging a state tax bill.
What we prepare
- Wills — who receives what, who serves as personal representative, and who is named guardian for minor children.
- Revocable living trusts — for families who want assets to pass without probate, privately and without a court timetable.
- Transfer-on-death deeds — the New Mexico instrument that moves real property to a named beneficiary at death without probate.
- Durable powers of attorney — so someone can manage your financial affairs if you become unable to.
- Health care directives — advance health care directives and agent designations under New Mexico law, so your care decisions rest with a person you chose.
- Beneficiary designation review — retirement accounts and life insurance pass by designation, not by will, and a stale designation quietly overrides everything else you signed.
The part most plans get wrong
A trust only governs the assets that were actually transferred into it. Deeds have to be signed and recorded. Accounts have to be retitled. Beneficiary forms have to be updated. This is called funding, and it is where a great many estate plans quietly fail — the documents were drafted correctly, handed over in a binder, and the assets were left sitting exactly where they were.
Funding is part of the engagement, not a homework assignment. We identify what needs to move, prepare the deeds, and tell you plainly which items you must complete with your own bank or plan administrator — and we confirm they were done.
Staying out of probate in New Mexico
New Mexico gives families genuinely useful tools for this, and they are underused:
Transfer-on-death deed — passes New Mexico real property to a named beneficiary at death; revocable during your lifetime; must be recorded before death.
Community property with right of survivorship — married couples may hold community property so it passes to the surviving spouse automatically.
Payable-on-death accounts — bank accounts pass directly to the named person, outside probate.
Funded revocable trust — assets titled in the trust are distributed by the trustee, without court involvement.
None of these is right for everyone, and stacking them carelessly creates conflicts — a beneficiary designation that contradicts a will, or a deed that defeats the trust it was meant to feed. The value is in choosing the right combination for your circumstances, and in making the pieces agree with one another.
Who this is for
New Mexico families putting their first plan in place. Texans who own New Mexico land, second homes, or mineral interests — a very common situation, and a frequent source of surprise ancillary probates. Parents of minor children who need a guardian named. Blended families, where the default rules of intestacy rarely produce what anyone intended. Business owners with a succession problem. And anyone who moved to New Mexico carrying documents drafted under another state's law.
Common questions
In New Mexico, is a will enough or do I need a trust?
For many families, a well-drafted will plus transfer-on-death and payable-on-death designations accomplishes what a trust would, at lower cost — especially since New Mexico follows the Uniform Probate Code and probate here is relatively streamlined. Trusts earn their keep where there is real property in more than one state, a beneficiary who should not receive money outright, a desire for privacy, or planning for incapacity rather than only for death.
What is a New Mexico transfer-on-death deed?
Under NMSA 1978, §§ 45-6-401 to 45-6-417, a transfer-on-death deed names a beneficiary to receive your New Mexico real property at death, bypassing probate. You keep full ownership and control while alive — you can sell, mortgage, or revoke it — but it must be recorded with the county clerk before your death or it has no effect.
I live in Texas but own land in New Mexico. What happens to it?
Real property is governed by the law of the state where it sits, so your New Mexico land is subject to New Mexico law regardless of where you live. Without planning, your family could face a second probate proceeding in New Mexico — an ancillary probate — on top of probate in your home state. A funded revocable trust holding the land, or a New Mexico transfer-on-death deed, avoids that.
What happens if I die without a will in New Mexico?
New Mexico's intestacy statutes, based on the Uniform Probate Code, decide. Community property generally passes to your surviving spouse, but separate property is shared — for instance, between your spouse and your children or your parents, depending on who survives you. Your family will need a court proceeding to establish who the heirs are.
We're married — doesn't everything automatically go to my spouse?
Not everything. Community property carries the half-and-half presumption, but separate property — what either spouse owned before marriage, or received by gift or inheritance — does not automatically pass to the surviving spouse. And even community property needs the right titling or beneficiary designations to transfer without a court process. Marriage alone is not an estate plan.
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