A. Unless a contrary intention is indicated by the will, the distributable assets of a decedent's estate shall be distributed in kind to the extent possible through application of the following provisions:

(1) a specific devisee is entitled to distribution of the thing devised to him, and a spouse or child who has selected particular assets of an estate as provided in Section 45-2-402 NMSA 1978 shall receive the items selected;

(2) any family allowance, personal property allowance or devise of a stated sum of money may be satisfied in kind, provided:

(a) the person entitled to the payment has not demanded payment in cash;

(b) the property distributed in kind is valued at fair market value as of the date of its distribution; and

(c) no residuary devisee has requested that the asset in question remain a part of the residue of the estate; and

(3) the residuary estate shall be distributed in any equitable manner.

B. For the purpose of valuation pursuant to Paragraph (2) of Subsection A of this section, securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day prior to distribution or, if there was no sale on that day, at the median between amounts bid and offered at the close of that day. Assets consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution. For assets that do not have readily ascertainable values, a valuation as of a date not more than thirty days prior to the date of distribution, if otherwise reasonable, controls. For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised.

C. After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset he is to receive, if not waived earlier in writing, terminates if he fails to object in writing received by the personal representative within thirty days after mailing or delivery of the proposal.

History: 1953 Comp., § 32A-3-906, enacted by Laws 1975, ch. 257, § 3-906; 1993, ch. 174, § 76.

Official comments. — See Commissioners on Uniform State Law official comment to 3-906 UPC.

The 1993 amendment, effective July 1, 1993, in Subsection A, substituted "45-2-402 NMSA 1978" for "2-402" in Paragraph (1), substituted "of a stated sum of money may be satisfied in kind" for "payable in money may be satisfied by value in kind" in the introductory paragraph of Paragraph (2), rewrote Paragraph (3) which read "the residuary estate shall be distributed in kind if there is no objection to the proposed distribution and it is practicable to distribute undivided interests. In other cases, residuary property may be converted into cash for distribution" and made minor stylistic changes throughout the section.

Effect of request for formal proceeding. — Where a distributee has requested, and the personal representative has agreed to, adjudication of the distributee's share of estate assets in a formal proceeding, and neither the parties nor the district court have agreed to or ordered any change in the nature of the proceeding, procedures provided by Subsection C, relating to proposals for distribution in informal proceedings, are inapplicable. Estates of Brown v. Brown, 2000-NMCA-030, 128 N.M. 825, 999 P.2d 1057.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of recovery against person to whom, by mistake of law, property of decedent's estate has been improperly distributed, 147 A.L.R. 121.

Title of, or right to possession by, specific legatee prior to order or decree of distribution, 150 A.L.R. 91.

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

Fiduciary's compensation on estate assets distributed in kind, 32 A.L.R.2d 778.

Family settlement of testator's estate, 29 A.L.R.3d 8.

34 C.J.S. Executors and Administrators § 492.