Subject to the rights of creditors and taxing authorities, successors or their representatives may agree among themselves to alter the interests, shares or amounts to which they are entitled under the will of the decedent or under the laws of intestacy in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement subject to the personal representative's obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration and to carry out the responsibilities of the personal representative's office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents' estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing in this section relieves trustees of any duties owed to beneficiaries of trusts.

History: 1953 Comp., § 32A-3-912, enacted by Laws 1975, ch. 257, § 3-912; 2016, ch. 69, § 719.

Official comments. — See Commissioners on Uniform State Law official comment to 3-912 UPC.

The 2016 amendment, effective July 1, 2016, after "taxing authorities", deleted "competent", after "successors", added "or their representatives", after "agreement subject to", deleted "his" and added "the personal representative's", and after "carry out the responsibilities of", deleted "his" and added "the personal representative's".

Agreement valid. — Where the decedent entered into a lease/purchase contract with defendants to sell decedent's ranch to defendants for a nominal sum; decedent's will bequeathed $10,000 to plaintiff who is decedent's child and devised the remainder of decedent's estate to a foundation; plaintiff and the foundation agreed to file an action to set aside the lease/purchase contract, and in exchange for the payment of all litigation expenses, the foundation agreed to sell the ranch to plaintiff for a nominal sum; if the court set aside the lease/purchase contract, the agreement between plaintiff and the foundation legally altered their interests under the will and only affected their interests and was valid under New Mexico law. Reinhardt v. Kelly, 1996-NMCA-050, 121 N.M. 964, 917 P.2d 963.

No agreement found. — Even if the deceased child of decedent had acquiesced to the decedent's conservator's sale of a property which had been specifically devised to the deceased child, the deceased child's acquiescence would be insufficient to waive the deceased child's surviving childrens' rights under the will, since no written contract executed by decedent's successors was entered into evidence as required by 45-3-912 NMSA 1978 of the Uniform Probate Code. In re Estate of Gardner, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.

This section is effectively a mini-statute of frauds which does not require that the agreement be in the form of a single formal written document. Tyrrell v. McCaw, 1985-NMSC-113, 103 N.M. 539, 710 P.2d 733.

Law reviews. — For annual survey of New Mexico law of estates and trusts, see 19 N.M.L. Rev. 669 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Provision for post-mortem payment or performance as affecting instrument's character and validity as a contract, 1 A.L.R.2d 1178.

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

Effect of settlement with and acceptance of release from one wrongful death beneficiary upon liability of tortfeasor to other beneficiaries or decedent's personal representative, 21 A.L.R.4th 275.

26A C.J.S. Descent and Distribution § 73; 96 C.J.S. Wills § 1110.