By Merri Rudd, appeared August 10, 2006, Albuquerque Journal, Business Outlook
Reprinted with permission

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: My husband is the personal representative of his mother's estate. He is ready to sell her home. Does he need to deed the house to himself before selling it? Thank you.

No, he does not need to deed the house to himself before selling it. In fact, he should not deed the house to himself first.

A personal representative who is appointed by the probate court or the district court has full powers to sell and transfer title to a decedent's real property located in New Mexico and to handle all other estate business.

As a fiduciary for his mother's estate, it is your husband's job to obtain a fair sales price for the house and distribute the net proceeds from the sale of the house according to his mother's will, if any. If she had no will, then the laws of intestate succession determine who receives the house proceeds.

Your husband is entitled to be reimbursed any fees and commissions associated with the sale of the house, as well as other estate expenses. He should keep written records for later accountings.

When he finds a qualified buyer and accepts an offer, the title company will have him provide a notarized deed at closing transferring the house from his mother's estate to the buyer. This deed that grants the house from the estate to the buyer is often called a "personal representative's deed."

Your husband must sign the personal representative's deed in the presence of a notary public, who notarizes the deed. The deed must then be recorded in the county clerk's office in the county where the house is located. Once recorded, the clerk returns the original deed for the new owner's records. A certified copy of the deed may also be placed in the probate case file. If someone is doing title research years from now, having this deed in the probate case file may be helpful. Recording the death certificate of the decedent along with the deed is also necessary.

Having an attorney or title company prepare the personal representative's deed helps ensure that valid title is passed.

This procedure is necessary when a decedent's house is titled in the sole name of the decedent. Houses held in joint tenancy with a surviving joint tenant or transferred by a "transfer on death" deed should not be subject to a court probate proceeding.

I am pleased you are asking this question BEFORE your husband closes the estate. We encounter numerous personal representatives who submit the "Verified Closing Statement of the Personal Representative" swearing that all estate business is concluded. A week or more after filing this document, the personal representative will come into our court asking how to transfer the decedent's house to the heirs, devisees, or new buyers. Once the Verified Closing Statement is filed, a personal representative cannot transfer the house without reopening the estate.

© 2006, Merri Rudd & Albuquerque Journal, All Rights Reserved