N.M. Stat. § 45-3-715 (2026)

exceptions.
   A. Except as restricted or otherwise provided by the will or by an order in a formal
proceeding and subject to the priorities stated in Section 45-3-902 NMSA 1978, a
personal representative, acting reasonably for the benefit of the interested persons, may
properly:

       (1)    retain assets owned by the decedent pending distribution or liquidation,
including those in which the representative is personally interested or which are
otherwise improper for trust investment;

       (2)    receive assets from fiduciaries or other sources;

       (3)    perform, compromise or refuse performance of the decedent's contracts
that continue as obligations of the estate, as he may determine under the
circumstances. In performing enforceable contracts by the decedent to convey or lease
land, the personal representative, among other possible courses of action, may:

         (a) execute and deliver a deed of conveyance for cash payment of all sums
remaining due or the purchaser's note for the sum remaining due secured by a
mortgage or deed of trust on the land; or

         (b) deliver a deed in escrow with directions that the proceeds, when paid in
accordance with the escrow agreement, be paid to the successors of the decedent as
designated in the escrow agreement;

       (4)     satisfy written charitable pledges of the decedent irrespective of whether
the pledges constituted binding obligations of the decedent or were properly presented
as claims, if in the judgment of the personal representative the decedent would have
wanted the pledges completed under the circumstances;

       (5)   if funds are not needed to meet debts and expenses currently payable and
are not immediately distributable, deposit or invest liquid assets of the estate, including
money received from the sale of other assets, in federally insured interest-bearing
accounts, readily marketable secured loan arrangements or other prudent investments
which would be reasonable for use by trustees generally;
        (6)    acquire or dispose of an asset, including land in New Mexico or another
state, for cash or on credit, at public or private sale, and manage, develop, improve,
partition or change the character of an estate asset;

       (7)    make ordinary or extraordinary repairs or alterations in buildings or other
structures, demolish any improvements, or raze existing or erect new party walls or
buildings;

        (8)    subdivide, develop or dedicate land to public use, make or obtain the
vacation of plats and adjust boundaries, adjust differences in valuation on exchange or
partition by giving or receiving considerations or dedicate easements to public use
without consideration;

       (9)    enter for any purpose into a lease as lessor or lessee, with or without
option to purchase or renew, for a term within or extending beyond the period of
administration;

       (10) enter into a lease or arrangement for exploration and removal of minerals
or other natural resources or enter into a pooling or unitization agreement;

       (11) abandon property when, in the opinion of the personal representative, it is
valueless or is so encumbered or is in condition that it is of no benefit to the estate;

       (12)   vote stocks or other securities in person or by general or limited proxy;

      (13) pay calls, assessments and other sums chargeable or accruing against or
on account of securities unless barred by the provisions relating to claims;

        (14) hold a security in the name of a nominee or in other form without
disclosure of the interest of the estate, but the personal representative is liable for any
act of the nominee in connection with the security so held;

      (15) insure the assets of the estate against damage, loss and liability and
himself against liability as to third persons;

       (16) borrow money with or without security to be repaid from the estate assets
or otherwise and advance money when necessary for the protection or preservation of
the estate;

        (17) effect a fair and reasonable compromise with any debtor or obligor or
extend, renew or in any manner modify the terms of any obligation owing to the estate.
If the personal representative holds a mortgage, pledge or other lien upon property of
another person, he may, in lieu of foreclosure, accept a conveyance or transfer of
encumbered assets from the owner of the assets in satisfaction of the indebtedness
secured by lien;
       (18) pay taxes, assessments, compensation of the personal representative and
other expenses incident to the administration of the estate;

       (19) sell or exercise stock subscription or conversion rights or consent, directly
or through a committee or other agent, to the reorganization, consolidation, merger,
dissolution or liquidation of a corporation or other business enterprise;

       (20) allocate items of income or expense to either estate income or principal as
permitted or provided by law;

        (21) employ persons, including attorneys, accountants, investment advisors,
appraisers or agents, even if they are associated with the personal representative, to
advise or assist the personal representative in the performance of his administrative
duties; act without independent investigation upon their recommendations; and, instead
of acting personally, employ one or more agents to perform any act of administration,
whether or not discretionary;

        (22) prosecute or defend claims or proceedings in any jurisdiction for the
protection of the estate and of the personal representative in the performance of his
duties;

       (23) sell, transfer, exchange or otherwise dispose of the estate or any interest
in the estate for cash or on credit or for part cash and part credit at public or private
sale. Security shall be taken for unpaid balances unless waived by order of the district
court upon petition and good cause shown;

      (24) continue any unincorporated business or venture in which the decedent
was engaged at the time of his death:

          (a) in the same business form for a period of not more than four months from
the date of appointment of a general personal representative if continuation is a
reasonable means of preserving the value of the business, including good will;

          (b) in the same business form for any additional period of time that may be
approved by order of the district court in a formal proceeding to which the persons
interested in the estate are parties; or

          (c) throughout the period of administration if the business is incorporated by
the personal representative and if none of the probable distributees of the business who
are competent adults object to its incorporation and retention in the estate;

        (25) incorporate any business or venture in which the decedent was engaged
at the time of his death;

         (26) provide for exoneration of the personal representative from personal
liability in any contract entered into on behalf of the estate; and
      (27) satisfy and settle claims and distribute the estate as provided in the
Uniform Probate Code.

    B. The powers granted in Subsection A of this section are given subject to those
limitations contained in other sections of the Uniform Probate Code.

History: 1953 Comp., § 32A-3-715, enacted by Laws 1975, ch. 257, § 3-715; 1995, ch.
210, § 37.

                                     ANNOTATIONS

Official comments. — See Commissioners on Uniform State Law official comment to
3-715 UPC.

Cross references. — For power to sell to pay estate taxes, see 7-7-11 NMSA 1978.

The 1995 amendment, effective July 1, 1995, in Subsection A, substituted "Section 45-
3-902 NMSA 1978" for "Section 3-902" in the introductory paragraph, added Paragraph
(4) and renumbered the remaining paragraphs accordingly; and made minor stylistic
changes throughout the section.

Prosecution of claims. — Once plaintiff’s surviving spouse was appointed as
decedent's estate’s personal representative, the surviving spouse 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-
715 NMSA 1978) and has the same standing to sue as the decedent had immediately
prior to death (45-3-703 NMSA 1978). Martinez v. Segovia, 2003-NMCA-023, 133 N.M.
240, 62 P.3d 331.

Borrowing money on behalf of estate. — Although the executor did not apply to the
district court for prior authority to borrow money on behalf of the estate or as an incident
of the administration of the estate, the court did approve these actions by adopting
general findings and approving the executor’s amended final account and report of the
executor; and the record amply supported the court's findings that these actions were
necessary to preserve and protect the assets of the estate. Skarda v. Skarda, 1975-
NMSC-031, 88 N.M. 130, 537 P.2d 1392.

No allowance of attorney's fees where personal representative not employed. —
The rule of law generally applied denies the right to an allowance of an attorney's fee
out of an estate to an attorney whose services were rendered on behalf of an interested
individual or group of individuals without employment by the personal representative of
the estate. Gregg v. Gardner, 1963-NMSC-223, 73 N.M. 347, 388 P.2d 68 (decided
under former law).

Executors may refuse to employ attorney named in will. — The right of executors to
refuse to employ an attorney who had been named as such in a will is upheld and the
attorney is entitled to compensation only for services performed prior to the date of his
discharge by the executor or executrix. Hoxsey v. Fullerton, 1960-NMSC-020, 67 N.M.
77, 352 P.2d 652 (decided under former law).

Breach of fiduciary duty. — Executor, who also served as trustee of decedent’s minor
children’s trusts and surviving spouse’s trust, did not completely efface self-interest, nor
exercise the executor's judgment and discretion with unstinted loyalty to the executor's
cestuis que trustent and did not conform to the standards of conduct required of a
trustee in purchasing stock of a corporation which the executor established for the ranch
which the executor and the executor's deceased sibling had co-owned, and should have
been held to account for stock in the corporation equal to one-half of the stock
purchased by him from the ranch manager, as a trustee for Vendla E. Wootten and the
children. Equitable adjustment was also required with respect to dividends that had
been paid on the stock and for interest on moneys advanced by the executor to
purchase the stock. Wootten v Wootten, 159 F.2d 567, (10th Cir. 1947), cert. denied,
331 U.S. 835, 67 S. Ct. 1516, 91 L. Ed. 1848, (1947).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Inspection of corporate books and
records by personal representative of deceased stockholder, 22 A.L.R. 98, 43 A.L.R.
783, 59 A.L.R. 1373, 80 A.L.R. 1502, 174 A.L.R. 262, 15 A.L.R.2d 11.

Right to exercise power of sale of real estate after time limited by will, 31 A.L.R. 1394.

Right of personal representative of leaseholder to enforce option to purchase contained
in lease, 38 A.L.R. 1176, 45 A.L.R.2d 1034.

Death of party between giving and exercise of option to purchase as affecting rights of
personal representatives of giver, 50 A.L.R. 1322.

Right or duty of executor or administrator to complete or enforce decedent's executory
contract for purchase of real property, 58 A.L.R. 436.

Rights and remedies in respect to sale and proceeds of land located in a state other
than domicile, for payment of decedent's debts, 81 A.L.R. 665.

Right of executor or administrator of claimant to file mechanic's lien, 83 A.L.R. 21.

Liability of trustee, guardian, executor or administrator for loss of funds invested, as
affected by order of court authorizing the investment, 88 A.L.R. 325.

Power of sale as including power to mortgage, 92 A.L.R. 882.

Power of sale of real estate given to executor as impliedly conferring right to
possession, 94 A.L.R. 1140.
Power and duty of trustee, executor, administrator or guardian as regards protection of
investment in stocks by submitting to voluntary assessment, 104 A.L.R. 979.

Liability to heirs, devisees, legatees or distributees of executor or administrator or his
bond in respect of invalid sale of property of the estate, 106 A.L.R. 429.

Liability of executor or his sureties for losses incurred in carrying on business pursuant
to direction or permission of will, 109 A.L.R. 639.

Construction and application of provision of will expressly giving executor or trustee
power to mortgage realty, 115 A.L.R. 1417.

Liability of trustee, guardian, executor or administrator for loss of funds, as affected by
failure to obtain order of court authorizing investment, in absence of mandatory statute,
116 A.L.R. 437.

Duty of executor or administrator of insolvent estate to sell real estate to pay debts, or
duty of probate court to order such sale, as affected by mortgage or other
encumbrances thereon, 116 A.L.R. 910.

Right of executor or administrator personally to purchase mortgage or other lien on real
property of decedent and enforce same, 117 A.L.R. 1371.

Duty and liability of executor (or administrator with will annexed) in respect of personal
property specifically bequeathed, and not needed for payment of debts, 127 A.L.R.
1071.

Beneficiary's consent to, acquiescence in, or ratification of, improper investment, 128
A.L.R. 4

Remedies in event of executor's or testamentary trustee's delay in exercise of power to
sell real estate conferred by will, 132 A.L.R. 1473.

Right or duty of executor or administrator to require security from life tenant, 138 A.L.R.
443.

Power of sale conferred by will upon executor as extending to real property not
specifically referred to in power nor devised by will, 139 A.L.R. 1143.

What agreement or conduct subsequent to assignment of lease amounts to assumption
by assignee of covenants of lease, or estoppel to deny such assumption, 148 A.L.R.
393.

Rights and duties of executor, administrator or testamentary trustee in respect of
property antecedently pledged to him by decedent, 154 A.L.R. 203.
Duty or right of executor or administrator to pay tax on real estate of decedent, 163
A.L.R. 724.

Rights and remedies of executor or administrator as regards estate or succession tax
paid or payable by him on property not passing under will or coming into his possession,
1 A.L.R.2d 978.

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.

Construction of specific provision of will or trust instrument giving executor or trustee
power to determine what is income or what is principal, 27 A.L.R.2d 1323.

Power of executor to create easements, 44 A.L.R.2d 573.

Power of personal representative to repair personal property of estate, 64 A.L.R.2d 857.

Delivery or distribution to life tenant, or assent by executor to his possession or to the
life interest, as inuring to benefit of the remaindermen and operating to take the
remainder out of the estate, absent a trust or will provision retaining it, 68 A.L.R.2d
1107.

Power and responsibility of executor or administrator to compromise claim due estate,
72 A.L.R.2d 191.

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

Power and responsibility of executor or administrator as to compromise or settlement of
action or cause of action for death, 72 A.L.R.2d 285.

Power and standing of personal representative of deceased promisee to enforce a
contract made for benefit of third party, 76 A.L.R.2d 231.

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.
Rights in growing, unmatured annual crops as between personal representatives of
decedent's estate and heirs or devisees, 92 A.L.R.2d 1373.

Who may exercise voting power of corporate stock pending settlement of estate of
deceased owner, 7 A.L.R.3d 629.

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

33 C.J.S. Executors and Administrators § 184.