Probate Courts

NMSA 1978 ch. 34, art. 7

in effect

NMSA 1978, § 34-7-1 Probate court; probate judge

34-7-1. Probate court; probate judge A. There shall be a probate judge in each county of this state, and each county is a probate court district. B. The position of probate judge is a part-time position. Kearny Code, Courts and Judicial Powers, § 19; C.L. 1865, ch. 21, § 1; C.L. 1884, § 407; C.L. 1897, § 745; Code 1915, § 1423; C.S. 1929, § 34-401; 1941 Comp., § 16-401; 1953 Comp., § 16-4-1; 1978 Comp., § 34-7-1; 1987, ch. 224, § 1; 2023, ch. 44, § 1.

NMSA 1978, § 34-7-2 Probate judge; election

34-7-2. Probate judge; election A probate judge shall be elected at each general election at which the governor is elected. Laws 1851-1852, p. 198; C.L. 1865, ch. 63, § 4; Code 1915, § 1245; C.S. 1929, § 33-4401; 1941 Comp., § 16-402; 1953 Comp., § 16-4-2; 1978 Comp., § 34-7-2; 2023, ch. 44, § 2.

NMSA 1978, § 34-7-3 Probate courts; seal

34-7-3. Probate courts; seal The probate courts shall procure and keep a seal with emblems and devices as the supreme court determines. Kearny Code, Records and Seals, § 1; C.L. 1865, ch. 93, § 1; C.L. 1884, § 658; C.L. 1897, § 1033; Code 1915, § 1424; C.S. 1929, § 34-402; 1941 Comp., § 16-404; 1953 Comp., § 16-4-4; 1978 Comp., § 34-7-3; 2023, ch. 44, § 3.

NMSA 1978, § 34-7-4 Place of holding court; quarters; salary

34-7-4. Place of holding court; quarters; salary A. The probate court shall be located at the county seat unless another location is designated by ordinance of the board of county commissioners. B. The board of county commissioners shall provide adequate quarters for the probate court, including necessary furnishings, equipment, books, supplies, utilities, upkeep and maintenance. C. Except as otherwise specifically provided by law, all expenses of the probate court, including salary and benefits of the judge, shall be paid from the county general fund in accordance with the court budget approved by the board of county commissioners. Laws 1869-1870, ch. 51, § 1; C.L. 1884, § 415; C.L. 1897, § 749; Code 1915, § 1426; C.S. 1929, § 34-404; 1941 Comp., § 16-405; 1953 Comp., § 16-4-5; 1978 Comp., § 34-7-4, repealed and reenacted by Laws 2023, ch. 44, § 4.

NMSA 1978, § 34-7-7 Custody of records

34-7-7. Custody of records The records, archives, documents and books of the probate court shall be under the charge of the clerk of the probate court in accordance with standards established by the supreme court. The records, archives and documents shall be kept in a separate book maintained for that purpose and may be kept in physical or electronic form. Law 1865-1866, ch. 41, § 2; C.L. 1884, § 411; C.L. 1897, § 747; Code 1915, § 1425; C.S. 1929, § 34-403; 1941 Comp., § 16-408; 1953 Comp., § 16-4-8; 1978 Comp., § 34-7-7, repealed and reenacted by Laws 2023, ch. 44, § 5.

NMSA 1978, § 34-7-8 Probate court; hours of business

34-7-8. Probate court; hours of business A. The probate court shall be open at such times as determined by the clerk of the probate court and published on the county's website. B. The probate judge in each county shall conduct business during those times as necessary for the proper discharge of duties and may set regular hours. Laws 1935, ch. 63, § 1; 1941 Comp., § 16-409; 1953 Comp., § 16-4-9; 1978 Comp., § 34-7-8; 1987, ch. 224, § 2; 2023, ch. 44, § 6.

NMSA 1978, § 34-7-9 Probate judge disqualification; transfer

34-7-9. Probate judge disqualification; transfer A. Whenever a probate judge shall, for any reason, be interested or disqualified from acting in any proceeding coming within the jurisdiction of the probate court, the judge shall, upon the judge's own motion or that of any interested party, immediately enter an order transferring the proceeding and file the order with the clerk of the probate court. B. Upon receipt of an order of recusal or disqualification, the clerk of the probate court shall give written notice to the district court of the county in which the probate court is situate, and the district court shall transfer the case to the district court or designate another probate judge to conduct further proceedings. If designating another probate judge, the district court shall give preference to probate judges serving within the same judicial district. Upon receipt by the clerk of the probate court of a district court designation, the clerk of the probate court shall send a copy of the designation to the parties or their counsel, to the designated district or probate judge and to the recused or disqualified judge. C. A probate judge who has accepted a designation by the district court has jurisdiction to sit in any action arising in any other probate district when designated for a specific case or for a specific period of time. A probate judge acting in another probate district by designation shall include the cases heard by designation in the probate judge's own reports to the district court, indicating on the reports that the probate court's jurisdiction is by designation. D. The board of county commissioners of the county of the recused or disqualified probate judge shall reimburse the district judge or probate judge sitting by designation for expenses incurred pursuant to the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978]. Laws 1889, ch. 132, § 1; C.L. 1897, § 751; Code 1915, § 1433; C.S. 1929, § 34-414; Laws 1933, ch. 102, § 1; 1941 Comp., § 16-412; 1953 Comp., § 16-4-12; 1978 Comp., § 34-7-9; 2023, ch. 44, § 7.

NMSA 1978, § 34-7-10 Proceedings in district court

34-7-10. Proceedings in district court A. All proceedings transferred from the probate court to the district court shall be docketed as other causes in that court, which court shall exercise the same authority and take the same steps and proceedings as would have otherwise been taken in the probate court. B. If a case was properly filed within the jurisdiction of the probate court and later transferred to the district court, no filing fee shall be charged in the district court. Laws 1933, ch. 102, § 2; 1941 Comp., § 16-413; 1953 Comp., § 16-4-13; 1978 Comp., § 34-7-10; 2023, ch. 44, § 8.

NMSA 1978, § 34-7-11 Probate judge absent or unable to attend to duties

34-7-11. Probate judge absent or unable to attend to duties A. Whenever a probate judge is absent, incapacitated or unable to attend to the probate judge's duties from any cause whatsoever, the probate judge shall enter a notice of unavailability and file the order with the clerk of the probate court; provided that if the judge is unable to prepare the notice due to incapacity, the clerk of the probate court shall prepare and file a notice of incapacitation. B. Upon receipt of a notice of unavailability or after preparing a notice of incapacitation, the clerk of the probate court shall give written notice to the district court of the county in which the probate court is situate and the district court shall designate a district judge or another probate judge to hold court in the county and do all things that could otherwise be done by the probate judge of that county, without the necessity of having the matters or proceedings transferred from the docket of the probate court to the docket of the district court or the other probate court. If designating another probate judge, the district court shall give preference to probate judges serving within the same judicial district. Upon receipt by the clerk of the probate court of the designation by the district court, the clerk of the probate court shall send a copy of the designation to the parties or their counsel, to the designated district or probate judge and to the unavailable or incapacitated probate judge. C. A probate judge acting in another probate district by designation as provided in this section shall include the cases heard by designation in the probate judge's own reports to the district court, indicating on the reports that the probate court's jurisdiction is by designation. D. The board of county commissioners of the county of the unavailable or incapacitated probate judge shall reimburse the district judge or probate judge sitting by designation for expenses incurred pursuant to the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978]. Laws 1933, ch. 101, § 1; 1941 Comp., § 16-414; Laws 1943, ch. 65, § 1; 1953 Comp., § 16-4-14; 1978 Comp., § 34-7-11; 2023, ch. 44, § 9.

NMSA 1978, § 34-7-13 Administration; supreme court rules

34-7-13. Administration; supreme court rules A. The supreme court shall promulgate rules to regulate pleading, practice and procedure in the probate courts to simplify and promote the speedy determination of probate. The rules shall not abridge, enlarge or modify the substantive rights of any party. B. The supreme court shall cause all rules to be printed and distributed to all probate judges and to all members of the bar, and no rule shall become effective until thirty days after the rule has been printed and distributed. Laws 1887, ch. 66, § 1; C.L. 1897, § 752; Code 1915, § 1435; C.S. 1929, § 34-416; 1941 Comp., § 16-416; 1953 Comp., § 16-4-16; 1978 Comp., § 34-7-13, repealed and reenacted by Laws 2023, ch. 44, § 10.

NMSA 1978, § 34-7-14 Fees of probate court

34-7-14. Fees of probate court Clerks of the probate courts shall receive a filing fee of thirty dollars ($30.00) for each probate case. Laws 1923, ch. 29, § 1; C.S. 1929, § 34-406; Laws 1937, ch. 111, § 1; 1941 Comp., § 16-422; 1953 Comp., § 16-4-22; 1961, ch. 16, § 1; 1975, ch. 257, § 8-102; 1993, ch. 132, § 1; 1978 Comp., § 34-7-14, repealed and reenacted by Laws 2023, ch. 44, § 11.

NMSA 1978, § 34-7-17 Probate court to keep accounts

34-7-17. Probate court to keep accounts The clerk of each probate court shall keep the accounts of the probate court and a record of all warrants issued against the county treasury and for what purpose. Laws 1860-1861, p. 80; C.L. 1865, ch. 39, § 20; C.L. 1884, § 417; C.L. 1897, § 755; Code 1915, § 1447; C.S. 1929, § 34-432; 1941 Comp., § 16-425; 1953 Comp., § 16-4-25; 1978 Comp., § 34-7-17; 2023, ch. 44, § 12.

NMSA 1978, § 34-7-18 Public money; when cases transferred to district court

34-7-18. Public money; when cases transferred to district court A. All money collected by a probate court in connection with any probate case is public money of the county held in trust until disbursed in accordance with law. B. If a party informs the probate court that distribution to a decedent's estate is required by federal law or other regulatory provision and there is no other account of the estate established to receive the money, the probate judge shall transfer the case to the district court. C. If a will requires a bond to be deposited with the court, the probate judge shall transfer the case to the district court. Laws 1860-1861, p. 80; C.L. 1865, ch. 39, § 21; C.L. 1884, § 418; C.L. 1897, § 756; Code 1915, § 1448; C.S. 1929, § 34-433; 1941 Comp., § 16-426; 1953 Comp., § 16-4-26; 1978 Comp., § 34-7-18, repealed and reenacted by Laws 2023, ch. 44, § 13.

NMSA 1978, § 34-7-22 Clerk of the probate court; deputy clerks; powers

34-7-22. Clerk of the probate court; deputy clerks; powers A. Unless otherwise provided by law, the county clerk of each county is designated as the clerk of the probate court in that county and shall have power to appoint deputy clerks of the probate court who shall have full power to perform all the duties of the clerk of the probate court. The fees received by the probate court shall be deposited in the county clerk recording and filing fund. B. The board of county commissioners of a county may by ordinance provide for a separate clerk of the probate court who shall have the power to appoint deputy clerks, and the fees received by that probate court shall be deposited in the county general fund. Laws 1866-1867, ch. 24, § 1; C.L. 1884, § 421; C.L. 1897, § 759; Code 1915, § 1443; C.S. 1929, § 34-427; 1941 Comp., § 16-430; 1953 Comp., § 16-4-30; 1978 Comp., § 34-7-22, repealed and reenacted by Laws 2023, ch. 44, § 14.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18534/index.doFetched: 10/20/2026