N.M. Stat. » N.M. Stat. / Chapter 45 / Article 3
New Mexico Statutes

N.M. Stat. § 45-3-102 (2026)

Necessity of order of probate for will.

✓ laws through the 2025 session (retrieved May 2026)
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Except as provided in Sections 45-3-1201, 45-3-1205 and 45-3-1301 NMSA 1978, to
be effective to prove the transfer of any property or to nominate a personal
representative, a will must be declared to be valid by an order of informal probate by the
probate court or an adjudication of probate by the district court.

History: 1953 Comp., § 32A-3-102, enacted by Laws 1975, ch. 257, § 3-102; 1995, ch.
210, § 31; 2005, ch. 143, § 1.

                                      ANNOTATIONS
Cross references. — For execution and formalities of attested wills, see 45-2-502
NMSA 1978.

For self-proved wills, see 45-2-504 NMSA 1978.

The 2005 amendment, effective July 1, 2005, expanded the exception to include
Sections 45-3-1205 and 45-3-1301 NMSA 1978.

The 1995 amendment, effective July 1, 1995, substituted "Section 45-3-1201 NMSA
1978" for "Section 3-1201" and deleted the former second sentence, relating to
admission as evidence of a devise of a duly executed and unrevoked will which has not
been probated.

Passage of real and personal property distinguished. — Real estate of a decedent
passes directly to the heirs or devisees and does not pass to the executor or
administrator. With personal property the rule is otherwise, and before title passes there
must be due administration followed by a determination of heirship and an order of
distribution. Clovis Nat'l Bank v. Callaway, 1961-NMSC-129, 69 N.M. 119, 364 P.2d 748
(decided under prior law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills § 227.

Relation back of probate of will in support of title or rights of persons claiming under or
through devisee, 48 A.L.R. 1035.

Right to probate subsequently discovered will as affected by completed prior
proceedings in intestate administration, 2 A.L.R.4th 1315.

95 C.J.S. Wills § 310.
Notes of Decisions
Cited in 5 cases, 2002–2020 · leading case: Premier Oil & Gas, Inc. v. Welch, 2021-NMCA-028, 493 P.3d 400.
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Premier Oil & Gas, Inc. v. Welch, 2021-NMCA-028, 493 P.3d 400. · cites it 6× “Below, the Welches sought a ruling from the district court construing the 1980 Will, but the district court found that “[NMSA 1978, Section 45-3-102 [(2005)] and [Section] 45-3-108 provide for a conclusive presumption of intestacy if the will is not probated within [three] years…”
Wilson v. Fritschy, 2002-NMCA-105, 55 P.3d 997. · cites it 4× “While this may technically have been an adjudication that the will was valid under NMSA 1978, § 45-3-102 (1995), I doubt collateral estoppel would serve to bar the tort action here.”
Inderjit Kaur Puri v. Shakti Parwha Kaur Khalsa, 2013-NMCA-104, 313 P.3d 250. · cites it 2× “See NMSA 1978, § 45-3-102 (2005) (stating that “to be effective to prove the transfer of any property .”
Wilmington Sav. Fund Soc'y, FSB v. Neill, No. 1:18-cv-00346 (D.N.M. Apr. 20, 2020). · cites it 2× “See NMSA 1978, § 45-3-102 (2005) (“[T]o be effective to prove the transfer of any property or to nominate a personal representative, a will must be declared to be valid by an order of informal probate by the probate court or an adjudication of probate by the district court.”
In the Matter of Yogiji, No. 31,178 (N.M. Ct. App. Aug. 19, 2013). · cites it 2× “See NMSA 1978, § 45-3-102 (2005) (stating that “to be effective to prove the transfer of any property .”
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