N.M. Stat. § 45-3-401 (2026)

A. A formal testacy proceeding is litigation to determine whether a decedent left a
valid will. A formal testacy proceeding may be commenced by an interested person
filing:

       (1)   a petition as described in Subsection A of Section 3-402 [45-3-402 NMSA
1978] in which he requests that the court, after notice and hearing, enter an order
probating a will; or

      (2)     a petition to set aside an informal probate of a will or to prevent informal
probate of a will which is the subject of a pending application; or

    (3)    a petition in accordance with Subsection C of Section 3-402 [45-3-402
NMSA 1978] for an order that the decedent died intestate.

   B. A petition may request formal probate of a will without regard to whether or not
the same or a conflicting will has been informally probated. A formal testacy proceeding
may, but need not, involve a request for appointment of a personal representative.

    C. During the pendency of a formal testacy proceeding, the probate court shall not
act upon any application for informal probate of any will of the decedent or any
application for informal appointment of a personal representative of the decedent.

    D. Unless a petition in a formal testacy proceeding also requests confirmation of the
previous informal appointment, a previously-appointed personal representative, after
receipt of notice of the commencement of a formal probate proceeding, must refrain
from exercising his power to make any further distribution of the estate during the
pendency of the formal proceeding. If a petitioner requests the appointment of a
different personal representative in a formal proceeding, the previously-appointed
personal representative, after receipt of notice thereof, shall refrain from exercising any
power of administration except as necessary to preserve the estate, or unless the
district court orders otherwise.

History: 1953 Comp., § 32A-3-401, enacted by Laws 1975, ch. 257, § 3-401.

                                     ANNOTATIONS

Official comments. — See Commissioners on Uniform State Law official comment to
3-401 UPC.
Cross references. — For right to jury trial in formal testacy proceeding, see 45-1-306
NMSA 1978.

Tort of interference with inheritance. — Where there was both an intervivos transfer
of all the property of a decedent's estate prior to the decedent's death and a claim of
improper influence in the revision of the decedent's will by the execution of a codicil, an
attack on the codicil in a probate proceeding would not be an adequate remedy
because the estate was devoid of assets. Plaintiff was not required to proceed in
probate, but could proceed in a civil tort action of intentional interference with
inheritance to attack the validity of the codicil. Peralta v. Peralta, 2006-NMCA-033, 139
N.M. 231, 131 P.3d 81.

Tort of interference with inheritance is an exception to the requirement that probate is
the only forum for attacking the validity of a testamentary instrument and exists in a
situation where the estate has been depleted so that there is no remedy in probate.
Peralta v. Peralta, 2006-NMCA-033, 139 N.M. 231, 131 P.3d 81.

Statutes permitting contest of wills to be strictly construed. — There was no right
to contest a will at common law and the right to do so exists by virtue of the statutes
which being in derogation of common law must be strictly construed. C. de Baca v.
Baca, 1964-NMSC-006, 73 N.M. 387, 388 P.2d 392 (decided under former law).

Formal proceeding. — Under Paragraph (2) of Subsection A, the mere filing of a
petition to set aside an informal probate of a will is enough to commence a formal
probate proceeding; the court does not have to approve the petition. In re Estate of
Duncan, 2002-NMCA-069, 132 N.M. 426, 50 P.3d 175, rev’d on other grounds sub nom.
Estate of Duncan v. Kinsolving, 2003-NMSC-013, 133 N.M. 821, 70 P.3d 1260.

Declaratory judgment. — A motion for declaratory relief to resolve issues relating to a
lease of property passed on through a will is a request to have the court exercise its
general civil jurisdiction and, thus, a request to prevent informal probate. In re Estate of
Duncan, 2002-NMCA-069, 132 N.M. 426, 50 P.3d 175, rev’d on other grounds sub nom.
Estate of Duncan v. Kinsolving, 2003-NMSC-013, 133 N.M. 821, 70 P.3d 1260.

Settlement and distribution petition subordinate. — A will contestant's petition for a
formal testacy proceeding filed pursuant to this section and within the three-year limit of
45-3-108 NMSA 1978 took precedence over a personal representative's petition for
settlement and distribution of the estate filed pursuant to 45-3-1001 NMSA 1978. Vieira
v. Estate of Cantu, 1997-NMCA-042, 123 N.M. 342, 940 P.2d 190.

Wills must be filed for probate upon death of testator, and no will may be accepted
for filing prior to the death of the testator. 1958 Op. Att'y Gen. No. 58-159 (opinion
rendered under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills § 842; 80 Am. Jur.
2d Wills § 952.
Right to probate subsequently discovered will as affected by completed prior
proceedings in intestate administration, 2 A.L.R.4th 1315.

Estoppel to contest will or attack its validity by acceptance of benefits thereunder, 78
A.L.R.4th 90.

95 C.J.S. Wills § 307.