the Probate Judge—Probating Real Property & Personal Representative's
Rudd, appeared April 7, 2005, 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: Can you probate real property in the Probate Courts?
Although I addressed this topic last year, two attorneys whom I greatly
respect recently told me that they believed one cannot probate real property
in the Probate Courts. Real property includes items such as land, houses,
farms, and ranches.
Let me repeat: if there is no dispute to the title or value of real property,
you can probate real property in an informal probate filed either in the Probate
Court or District Court.
In fact, a former title company attorney trained the statewide association
of probate judges earlier this year and stated, "I regularly file estates
containing real property in the probate court."
No state law requires a formal closing in District Court for estates that
contain real property. Attorneys, pro se applicants, and title companies all
use informal probate proceedings in the Probate Court for estates with real
Sometimes owners, prior to death, have created transfer on death deeds (TODD)
or added a joint tenant to their real property so that no court probate proceeding
is necessary upon their death. In these instances, recording the deceased
owner's death certificate into the county clerk's records completes the transfer
of title to the TODD beneficiary or surviving joint tenant. If the real property
were held in the name of the trustee of a trust, then the successor trustee
would execute and record a new deed to the beneficiaries named in the trust.
But if a decedent's house was titled in the sole name of the decedent, a court
probate proceeding would be necessary to transfer the house to the person(s)
entitled to receive it under a will or the laws of intestacy or to the person
who purchased the house from the estate. Sometimes a person's will specifies
that the house be sold and the proceeds distributed according to the terms
of the will.
Once a personal representative is appointed by either the Probate Court or
the District Court, that person has full power to sell and transfer title
to the decedent's real property located in New Mexico. The personal representative
has legal authority to transfer title via a "Personal Representative's
Deed" that transfers the real property from the estate to the beneficiaries
This deed must be signed by the personal representative 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 property is located. Once
recorded, the clerk returns the original deed to the title company, personal
representative, or attorney for the estate. A certified copy of the deed may
also be filed in the court file. Recording the death certificate of the decedent
in every county where real property is located is also necessary.
Having an attorney or title company prepare the personal representative's
deed should insure that valid title is passed.
An exception exists to probating real property in the Probate Courts. If the
title to or value of real property is disputed, only the District Court in
a formal probate proceeding has jurisdiction to resolve the dispute.
2005, Merri Rudd & Albuquerque Journal, All Rights Reserved