A. Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:

(1) the person with priority as determined by a probated will, including a person nominated by a power conferred in a will;

(2) the surviving spouse of the decedent who is a devisee of the decedent;

(3) other devisees of the decedent;

(4) the surviving spouse of the decedent;

(5) other heirs of the decedent; and

(6) forty-five days after the death of the decedent, any creditor.

B. An objection to an appointment may be made only in formal proceedings. In case of objection, the priorities stated in Subsection A of this section apply except that:

(1) if the estate appears to be more than adequate to meet allowances and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person; and

(2) in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value of the estate or, in default of this accord, any suitable person.

C. A person entitled to letters under Paragraphs (2) through (5) of Subsection A of this section or a person who has not reached the age of majority and who would be entitled to letters but for the person's age may nominate a qualified person to act as personal representative by an appropriate writing filed with the court and thereby confer the person's relative priority for appointment on the person's nominee. Any person who has reached the age of majority may renounce the right to nominate or to an appointment by an appropriate writing filed with the court. When two or more persons entitled to letters under Paragraphs (2) through (5) of Subsection A of this section share a priority, all those who do not renounce must concur in nominating another to act for them or in applying for appointment by an appropriate writing filed with the court. The person so nominated shall have the same priority as those who nominated the person. A nomination or renunciation shall be signed by each person making it, the person's attorney or the person's representative authorized by Subsection D of this section.

D. Conservators of the estates of protected persons or, if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person may exercise the same right to nominate, to object to another's appointment or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person would have if qualified for appointment.

E. Appointment of one who does not have priority, including priority resulting from renunciation or nomination determined pursuant to this section, may be made only in formal proceedings. Before appointing one without priority, the court shall determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment and that administration is necessary.

F. No person is qualified to serve as a personal representative who is:

(1) under the age of majority; or

(2) a person whom the court finds unsuitable in formal proceedings.

G. A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representatives in New Mexico and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.

H. This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.

History: 1953 Comp., § 32A-3-203, enacted by Laws 1975, ch. 257, § 3-203; 2009, ch. 159, § 25; 2011, ch. 124, § 44; 2017, ch. 41, § 16.

Cross references. — For priority for appointment as a special administrator, see 45-3-615 NMSA 1978.

For appointment of administrator on application of revenue division of department of taxation and revenue, see 7-7-9 NMSA 1978.

For age of majority, see 12-2A-3 and 28-6-1 NMSA 1978.

The 2017 amendment, effective January 1, 2018, included creditors in the priority list for persons seeking appointment as personal representative; in Subsection A, Paragraph A(6), deleted "on application or petition of an interested person other than a spouse, devisee or heir, any qualified person" and added "forty-five days after the death of the decedent, any creditor"; in Subsection C, in the first sentence, after "majority and who", deleted "might" and added "would", and in the third sentence, after "do not renounce", deleted "shall" and added "must"; in Subsection E, deleted "highest" preceding each occurrence of "priority" throughout the subsection; and in Subsection F, deleted Paragraph (F(3).

The 2011 amendment, effective January 1, 2012, in Subsection C, required that the nomination of a personal representative be in writing and filed with the court; provided that the person nominated has the same priority as those who nominated the person; and required that a nomination or renunciation be signed by each person making it and by their attorney or representative.

The 2009 amendment, effective June 19, 2009, in Subsection D, after "devisees that the protected person", deleted "ward".

De facto spouse under Australian law was not a marriage. — Where an Australian court determined that petitioner was the de facto spouse of the decedent under the Australian property relationships law based on the facts that petitioner and decedent had a twenty-year relationship, lived together openly and publicly, and were involved in each other's business and economic affairs; the Australian property relationships law conferred the same succession rights on de facto spouses as it conferred on spouses in marriage; the Australian court expressly stated that the Australian property relationships law did not create a marriage; petitioner and the decedent were not married to each other; and the de facto spouse status conferred by the Australian property relations law was distinct from the status of marriage under both the Australian marriage law and the Australian family law; and the de facto relationship was not a common-law marriage, the de facto spouse relationship under the Australian property relationships law was not a marital relationship under New Mexico law. Dion v. Rieser, 2012-NMCA-071, 283 P.3d 871, cert. denied, 2012-NMCERT-006.

Surviving spouse's preference. — In adjudicating a petition for formal appointment of the decedent's child as personal representative, the trial court correctly appointed the decedent's spouse, who had been appointed informally, as personal representative because the spouse had priority as surviving spouse of the decedent under 45-3-203A(4) NMSA 1978. In re Estate of Lopez, 1987-NMCA-087, 106 N.M. 157, 740 P.2d 707.

Sole surviving parent. — The father of a child, as the child's sole surviving parent, was entitled to priority in appointment as the personal representative of the child's estate, where his paternity had been adjudicated, his attempts to have a paternal relationship with the child were thwarted by the natural mother, and the other applicants were the deceased mother's half-brother and mother. In re Estate of Sumler, 2003-NMCA-030, 133 N.M. 319, 62 P.3d 776.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 31 Am. Jur. 2d Executors and Administrators §§ 162 to 194.

Selection of administrator from among members of class equally entitled, 1 A.L.R. 1245.

Status and acts of one appointed executor or administrator who was ineligible, 14 A.L.R. 619.

Separation agreement as affecting right of husband or wife to administer deceased spouse's estate, 35 A.L.R. 1511, 34 A.L.R.2d 1020.

Deferred class of next of kin named in statute, but not beneficially interested in particular estate, preference respecting appointment in favor of person in, 70 A.L.R. 1466.

Stranger, right to pass over eligible person interested in estate and appoint, 80 A.L.R. 824.

Power of court to refuse letters testamentary to one named in will as executor in absence of specific statutory disqualification, 95 A.L.R. 828.

Consul's right to appointment as administrator, 100 A.L.R. 1527.

Statute authorizing appointment of trust company as administrator, upon application or consent of one acting as such (or executor), or one entitled to appointment as such, 105 A.L.R. 1190.

Time and manner of taking advantage in action commenced or continued by foreign executor or administrator of his failure to qualify in state, 108 A.L.R. 1282.

Choice in appointment of administrator as between nominee of one in higher order of statutory preference and one in lower order of preference, 113 A.L.R. 780.

Premature granting of letters testamentary or of administration as affecting acts or proceedings thereunder, 113 A.L.R. 1398.

Grantees of, or successors to, interest of one eligible because of specified relationship to deceased, who are within statute making such persons eligible to appointment, 114 A.L.R. 275.

Appointment as administrator of one not a member, nor nominee of a member, of the class of persons designated by statute as eligible to appointment, where no one in better right has applied, 119 A.L.R. 143.

Contract in consideration of renunciation of one's status, or right to appointment, as guardian, executor, administrator, trustee or other fiduciary, as contrary to public policy, 121 A.L.R. 677.

Creditor's or debtor's right to attack issuance of letters of administration, 123 A.L.R. 1225.

Brevity of period after death of decedent as affecting propriety of grant of letters testamentary or of administration, 133 A.L.R. 1483.

Guardian of infant or incompetent, right to appointment as executor or administrator as representative or substitute for infant or incompetent, 135 A.L.R. 585.

Special or temporary administrator, person to be appointed as, pending will contest, 136 A.L.R. 604.

Administration of estate of one the fact of whose death rests upon presumption or circumstantial evidence, 140 A.L.R. 1403.

Waiver on renunciation of right to administer decedent's estate, scope and effect, 153 A.L.R. 220.

Executor de son tort, propriety of appointment as executor or administrator, 157 A.L.R. 237.

Right of minor next of kin to apply through next friend for appointment of administrator, 161 A.L.R. 1389.

Construction and application of statutes relating specifically to preferences in appointment as administrator with the will annexed, 164 A.L.R. 844.

Governing law as to existence or character of offense for which one has been convicted in a federal court or court of another state, as bearing upon disqualification as executor or administrator, 175 A.L.R. 806.

Effect of divorce, separation, desertion, unfaithfulness and the like, upon right to name appointee for administration of estate of spouse, 34 A.L.R.2d 876.

Right of appeal from order on application for removal of personal representative, guardian or trustee, 37 A.L.R.2d 751.

Delay in presenting will for probate or in seeking letters testamentary, loss of right to be appointed executor by, 45 A.L.R.2d 916.

Powers and duties of a public administrator, 56 A.L.R.2d 1183.

Right of surviving spouse, personally incompetent to serve as administrator because of being younger than age specified, to nominate administrator, 64 A.L.R.2d 1152.

Construction and effect of statutory provision that no person is competent to act as executor or administrator whom court finds incompetent by reason of want of integrity, 73 A.L.R.2d 458.

Public administrators and others, priority, as regards right to appointment, as between, 99 A.L.R.2d 1063.

Capacity of infant to act as executor or administrator, and effect of improper appointment, 8 A.L.R.3d 590.

Foreign corporation, eligibility to appointment as executor, administrator or testamentary trustee, 26 A.L.R.3d 1019.

Physical condition as affecting competency to act as executor or administrator, 71 A.L.R.3d 675.

Who is resident within meaning of statute prohibiting appointment of nonresident executor or administrator, 9 A.L.R.4th 1223.

33 C.J.S. Executors and Administrators §§ 31, 33.