A. Venue for the first informal or formal testacy or appointment proceedings after a decedent's death is:

(1) in the county where the decedent had his domicile at the time of his death; or

(2) if the decedent was not domiciled in New Mexico, in any county where property of the decedent was located at the time of his death.

B. Venue for all subsequent proceedings is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in Section 1-303 [45-1-303 NMSA 1978] or Subsection C of this section.

C. If the first proceeding was informal, on petition of an interested person and after notice to the proponent in the first proceeding, the district court in the place where the initial proceeding occurred, upon finding that venue is improper, may transfer the proceeding and the file to a court where venue is proper.

D. For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving non-domiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a non-domiciliary, is located where the debtor resides or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued.

History: 1953 Comp., § 32A-3-201, enacted by Laws 1975, ch. 257, § 3-201.

Compiler's notes. — This section is similar to former 31-1-3 and 31-5-1, 1953 Comp.

Cross references. — For venue for multiple proceedings, see 45-1-303 NMSA 1978.

For venue for guardianship of minors, see 45-5-205 NMSA 1978.

For venue for guardianship of incapacitated persons, see 45-5-302, 45-5-313 NMSA 1978.

For venue for protective proceedings, see 45-5-403 NMSA 1978.

Factors determining domicile. — In determining the domicile of decedent at the time of his death, the court must look to the testator's intent at the time of the making of the will, together with his acts, conduct and the surrounding circumstances. Viramontes v. Viramontes, 1965-NMSC-096, 75 N.M. 411, 405 P.2d 413.

Order withdrawing will from probate proper where change of domicile. — Order of district court authorizing withdrawal of will from probate on the ground that decedent was a resident of and domiciled in Texas was proper where evidence showed that decedent had changed his domicile prior to his death to Texas where he had resided for more than 10 years, divorced his New Mexico wife, conducted farming operations, was buried and where three months prior to his death he had applied for and been issued a Texas liquor license under a Texas statute limiting such licenses to citizens of Texas. Viramontes v. Viramontes, 1965-NMSC-096, 75 N.M. 411, 405 P.2d 413.

Right of indemnity sufficient to support appointment of administrator. — Under former 31-1-3, 1953 Comp., a right of indemnity under a liability insurance policy issued to nonresident decedent by company authorized to do business in New Mexico and subject to process in this state was sufficient to support appointment of administrator for the estate in county in which he died following automobile collision, although no judgment had been recovered against decedent's estate making the right of indemnity a debt. Miller v. Stiff, 1957-NMSC-034, 62 N.M. 383, 310 P.2d 1039.

Venue where indemnity under automobile insurance policy only asset. — Where nonresident is injured in an automobile accident in Otero county, New Mexico, dies out of state, and whose only asset in New Mexico is a right to indemnity under an automobile liability insurance policy, Santa Fe county has venue, under 31-1-3, 1953 Comp. (repealed), to issue letters of administration, as 59-5-6 NMSA 1978 (see 59A-5-32 and 59A-5-33 NMSA 1978) requires all insurance companies to appoint the state superintendent of insurance, located in Santa Fe, as their attorney for service of process. In re Estate of Owens, 1976-NMSC-041, 89 N.M. 420, 553 P.2d 700.

Right of indemnity under automobile liability policy issued to nonresident motorist who was involved in an accident in Torrance county, New Mexico, but who died in Illinois, was an asset of his estate sufficient to support appointment of resident administrator in Santa Fe county which was place in which insurer's statutory agent had his office and residence. Kimbell v. Smith, 1958-NMSC-097, 64 N.M. 374, 328 P.2d 942.

Nonresident airplane pilot who crashes in state. — Probate court of Bernalillo county had jurisdiction to appoint an administrator for the estate of a nonresident airplane pilot who died in a crash in the same county while piloting for a common carrier, although the decedent had no real or personal property in New Mexico, where the pilot was covered by a casualty insurance policy, purchased by the carrier, indemnifying him for any judgment rendered against him resulting from the negligent operation of the airplane. In re Reilly, 1957-NMSC-095, 63 N.M. 352, 319 P.2d 1069.

Out-of-state car crash, decedent, estate and administrator. — The New Mexico courts did not have jurisdiction and the Texas administrator, in the status of an administrator, was not subject to suit in New Mexico where plaintiff, who was injured in car crash in Colorado, in which decedent was killed, sued the administrator of decedent's estate, which was wholly within Texas, while the administrator was traveling through New Mexico. There had been no attempt to institute any administrative proceedings in New Mexico and the court held that the Texas administrator's status did not extend beyond the territorial limits of that state. State ex rel. Scott v. Zinn, 1964-NMSC-105, 74 N.M. 224, 392 P.2d 417.

Where escrow contract for sale of farm on file. — County wherein decedent's escrow contract for the sale of his farm, where the obligation of $8,000 due estate was on file, was proper county for bringing probate proceedings, though decedent had no place of abode or mansion within the state. Anderson v. Minton, 1948-NMSC-063, 52 N.M. 393, 200 P.2d 361.

Effect where lack of jurisdiction not affirmatively asserted. — Where the claim that probate court lacked jurisdiction did not affirmatively appear in record of district court on collateral attack, the probate court had authority to grant letters of administration in county where personal estate was located even though the only estate asserted was a cause of action for wrongful death of nonresident occurring out of state, and there was no proof as to whether the tort-feasors were or were not subject to suit in the county where the probate court was located. McKenzie v. K.S.N. Co., 1968-NMCA-044, 79 N.M. 314, 442 P.2d 804.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 31 Am. Jur. 2d Executors and Administrators § 104; 79 Am. Jur. 2d Wills §§ 850 to 858.

33 C.J.S. Executors and Administrators § 13; 95 C.J.S. Wills § 355.