Rights to a Deceased Sibling's Property With No Will

Attorney Answer

Living on your brother's property for three years does not make you an owner or an heir — under New Mexico's intestacy rules only his relatives, in the order the statute sets, inherit what he owned.

When someone dies without a will in New Mexico, the estate passes under the Uniform Probate Code's intestate succession provisions, NMSA 1978 §§ 45-2-101 et seq. Those sections determine who takes by kinship — spouse, children, parents, siblings and so on. Occupying the property, maintaining it, or paying its bills does not put you on that list. And occupying land with the owner's permission is not the kind of possession that ripens into ownership; permission is the opposite of the hostile possession an ownership claim would require.

Who controls the estate is a separate question, answered by NMSA 1978 § 45-3-203. In both formal and informal proceedings the priority order for appointment as personal representative is: the person with priority under a probated will; a surviving spouse who is a devisee; other devisees; the surviving spouse; other heirs; and finally any creditor, but only forty-five days after death. Minors and persons the court finds unsuitable are disqualified. Someone with no priority can be appointed only in a formal proceeding, and only after the court finds that those with priority were noticed and failed to seek appointment or nominate anyone.

Read together, that means: unless you are one of your brother's heirs, you have no say in who administers the estate and no claim to the land itself. What you may have is a creditor's claim — for money you spent, improvements you made, or debts of his you paid.

What you can do

1. Check with the district court clerk in the county where your brother lived to find out whether anyone has already opened a probate case, and get the case number if so. 2. Write out his family tree — surviving spouse, children, parents, siblings — because §§ 45-2-101 et seq. decide everything from that list. 3. If you are one of his heirs, you have priority under § 45-3-203 and can petition for appointment. If you are not, identify who does have priority and contact them. 4. Gather every receipt, bank record, and photo showing what you paid, built, or repaired on that property. That is the evidence behind a creditor claim, and § 45-3-203 lets a creditor apply for appointment forty-five days after death if nobody with priority acts. 5. Ask in writing for permission to remain on the property from whoever is appointed personal representative, and keep the reply. Once appointed, that person controls the property. 6. Do not remove, sell, or transfer anything of your brother's. That is estate property now, not yours.

⏱ Time limits apply. Probate in New Mexico runs under Chapter 45, and both the window for opening an estate and the window for presenting claims against it are limited; § 45-3-203 also sets a forty-five day mark before a creditor may seek appointment. How much time you have left depends on the date of death and what has already been filed, so check the docket before assuming anything is still open.