N.M. Stat. § 45-3-703 (2026)

in estate; standing to sue.
    A. A personal representative is a fiduciary who shall observe the same standards of
care applicable to trustees. A personal representative is under a duty to settle and
distribute the estate of a decedent in accordance with the terms of any probated and
effective will and the Uniform Probate Code and as expeditiously and efficiently as is
consistent with the best interests of the estate. The personal representative shall use
the authority conferred upon the personal representative by the Uniform Probate Code,
the terms of the will, if any, and any order in proceedings to which the personal
representative is party for the best interests of successors to the estate.

    B. A personal representative may not be surcharged for acts of administration or
distribution if the conduct in question was authorized at the time. Subject to other
obligations of administration, an informally probated will authorizes a personal
representative to administer and distribute the estate according to its terms.

    C. An order of appointment of a personal representative, whether issued in informal
or formal proceedings, authorizes a personal representative to distribute apparently
intestate assets to the heirs of the decedent if, at the time of distribution, the personal
representative is not aware of:

       (1)    a pending testacy proceeding;

       (2)    a proceeding to vacate an order entered in an earlier testacy proceeding;

      (3)   a formal proceeding questioning the personal representative's
appointment or fitness to continue; or

       (4)    a supervised administration proceeding.

   D. This section does not affect the duty of the personal representative to administer
and distribute the estate in accordance with the rights of claimants whose claims have
been allowed, the surviving spouse, any minor and dependent children and any
pretermitted child of the decedent.
    E. Except as to proceedings that do not survive the death of the decedent, a
personal representative of a decedent domiciled in New Mexico at the decedent's death
has the same standing to sue and be sued in the courts of New Mexico and the courts
of any other jurisdiction as the decedent had immediately prior to death.

   F. The personal representative must not delay distribution of an estate pending the
possible birth of a posthumously conceived child unless the personal representative:

        (1)    has received written notice or has actual knowledge that there is an
intention to use a decedent's genetic material to create a child; and

       (2)    the birth of the child pursuant to the provisions of Section 45-2-120 NMSA
1978 or other law could have an effect on the personal representative's distribution of
the estate. As used in this subsection, "genetic material" means eggs, sperm or
embryos.

History: 1953 Comp., § 32A-3-703, enacted by Laws 1975, ch. 257, § 3-703; 2011, ch.
124, § 46; 2017, ch. 41, § 17.

                                    ANNOTATIONS

The 2017 amendment, effective January 1, 2018, added Subsection F.

The 2011 amendment, effective January 1, 2012, provided that a personal
representative is a fiduciary who must observe the standards of care of trustees.

Conflicts of interest. — Where decedent had initiated divorce proceedings against
decedent's spouse and died prior to any rulings in that case, the trial court erred in
appointing decedent’s spouse as personal representative of decedent’s estate pursuant
to 45-3-703E NMSA 1978, since the pending divorce proceedings must continue in
accordance with 40-4-20B NMSA 1978, and it was clear there was an inherent conflict
of interest in having the spouse serve as personal representative of decedent’s estate.
Oldham v. Oldham, 2009-NMCA-126, 147 N.M. 329, 222 P.3d 701, aff'd in part, rev'd in
part, 2011-NMSC-007, 149 N.M. 215, 247 P.3d 736.

Division of marital estate. — Parents of decedent, as personal representatives of
decedent’s estate, succeeded to decedent's interest in division of marital property and
had the same standing to be sued as did decedent during decedent's life, so that the
district court had jurisdiction to divide the marital estate between decedent's spouse and
the personal representatives of decedent’s estate. Karpien v. Karpien, 2009-NMCA-043,
146 N.M. 188, 207 P.3d 1165.

Standing to sue. — Once plaintiff’s surviving spouse was appointed as decedent's
estate’s personal representative, plaintiff could be substituted as the real party in
interest because, under the Uniform Probate Code, the personal representative is
authorized to prosecute claims for the protection of the estate (45-3-715A(22) NMSA
1978) and has the same standing to sue as the decedent had immediately prior to death
(45-3-703E NMSA 1978). Martinez v. Segovia, 2003-NMCA-023, 133 N.M. 240, 62 P.3d
331.

Breach of duty. — A personal representative who failed to distribute the estate in
accordance with either the will or New Mexico law breached the personal
representative's duty, since, although the decedent intended decedent's grandchildren
to have a particular property if their father predeceased decedent, and the personal
representative knew this fact, the personal representative misrepresented the terms of
the will to the grandchildren and their mother, the personal representative promised to
send them a copy of the will but failed to do so, thus preventing them from learning of
their interest under the will, and the personal representative filed pleadings in probate
and distributed the estate in a manner that, if the probate had not been contested, it
would have appeared that petitioners had notice and had received their "intestate"
share of the estate assets listed on the inventory, which omitted the property the
decedent had intended decedent's grandchildren to have. In re Estate of Gardner, 1992-
NMCA-122, 114 N.M. 793, 845 P.2d 1247.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of administrator with will annexed
to execute power of sale conferred by will, 9 A.L.R.2d 1324.

Power of sale conferred on executor by testator as authorizing private sale, 11 A.L.R.2d
955.

Implied power of executor to sell real estate, 23 A.L.R.2d 1000.

Time within which personal representative must commence action for refund of legacy
or distribution, 29 A.L.R.2d 1248.

Necessity that person acting in fiduciary or representative capacity give bond to
maintain appellate review proceedings, 41 A.L.R.2d 1324.

Power and responsibility of executor or administrator to compromise claim against
estate, 72 A.L.R.2d 243.

Election by spouse to take under or against will as exercisable by agent or personal
representative, 83 A.L.R.2d 1077.

Power of executor with power to sell or to lease real property, or to do both, to give an
option to purchase, 83 A.L.R.2d 1310.

Duty and liability of executor with respect to locating and noticing legatees, devisees or
heirs, 10 A.L.R.3d 547.

Right of executor or administrator to appeal from order granting or denying distribution,
16 A.L.R.3d 1274.
33 C.J.S. Executors and Administrators § 142; 34 C.J.S. Executors and Administrators
§§ 688, 707.