Ask the Probate Judge—Community House Affidavit

By Merri Rudd, appeared September 5, 2002, 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 and I were married almost 50 years. After we married, we bought a home together, but the deed just lists his name. He died recently and had a will leaving our house to me. Does the house have to go through probate? All of our other accounts were held jointly.

This situation arises regularly. A husband and wife own their home as community property (they bought the home during the marriage), but the deed to the home does not say "joint tenants" or is titled in the name of only one spouse.

Normally if this were the case, the surviving spouse would open a court probate proceeding to transfer the home into his or her name. But when only a community home needs to be probated, New Mexico has a special law. The law says that when one spouse dies, if there is no will or if the deceased spouse's will leaves the home to the surviving spouse, then the home transfers without a probate. To accomplish this, the surviving spouse must complete an "affidavit of transfer of title to homestead."

To use this affidavit (a sworn, notarized statement):

the home must be community property;
the value of the home for property tax purposes cannot exceed $100,000; and
the home involved must be the principal place of residence of the decedent or surviving spouse.

You cannot use this affidavit until six months after the first spouse's death. The affidavit must contain particular language, such as:

the surviv-ing spouse and deceased spouse were married at the time of death and owned the home as community property;
except for the home, no probate of the decedent's estate is neces-sary;
no one has applied to be personal representative or started a probate proceeding in any court;
all funeral expenses and other debts have been paid; and
no federal or state taxes are due.

Additional language must be listed as well (New Mexico Statutes Annotated, Section 45-3-1205 outlines all requirements). A copy of the old deed to the home, as well as a certified copy of the deceased spouse's death certificate, should be attached to the affidavit.

If these requirements are met, clear legal title to the home passes to the surviving spouse without a probate. To complete the transfer of title, the surviving spouse records the affidavit, old deed, and original death certificate in the office of the county clerk in the county where the home is located. If you are unsure about how to prepare and record this affidavit, hire an attorney to assist you.

This affidavit helps only husbands and wives who do not have a joint tenancy deed to their community home. If the marital home were the separate property of one spouse, this affidavit could not be used.



© 2002, Merri Rudd & Albuquerque Journal, All Rights Reserved