Ask the Probate Judge—Real Property Outside County of Domicile
Rudd, appeared February 9, 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 mother died in Albuquerque and owned a house here. She also owned a cabin in Jemez Springs. Her name is the only one on the deeds to the cabin and house. If I file the probate in Bernalillo County, as your court web site seems to indicate, how do I transfer the Jemez Springs property? Do I file another probate in Sandoval County? M.A., Albuquerque
You are correct that the initial probate should be filed in Bernalillo County, either in the Second Judicial District Court or the Bernalillo County Probate Court. This is because a probate case should be filed in the court in the county where the decedent is domiciled.
Once a court appoints the personal representative, he or she has the legal authority to handle estate business anywhere in New Mexico, including transferring both real and personal property. The personal representative also has the power to transfer personal property of a decedent that is located outside New Mexico.
If a probate is required to transfer real property located out of state, the personal representative may need to obtain additional authority to act in the other state. Court procedures for obtaining this authority vary from state to state.
The good news for you is that the real property is located within the state. New Mexico's probate code contains a "shortcut" for real property of an estate located in a county within New Mexico other than where the probate was filed.
Instead of filing an entirely new probate case in the other county, the personal representative of the estate must record with the county clerk of the county where the property is located a "Notice of Administration" that sets forth the:
(1) name of the decedent'
(2) caption and docket number of the probate proceedings;
(3) type of administration, i.e., formal, informal or supervised;
(4) court where the probate is filed;
(5) name, address and title of the personal representative; and
(6) complete legal description of the real property located in that county.
Recording means presenting the original document to the county clerk's Recording and Filing Office. The clerk makes a photocopy of the document and records the document into the public records. There is a $9 charge to record the first page and $2 for each page thereafter. Once a document is recorded, it is available to the public to inspect and/or copy.
Recording the Notice of Administration in the Sandoval County Clerk's office gives notice to anyone who searches the title history of the cabin that the personal representative has legal authority to transfer title to the cabin, either to (1) your mother's heirs; or (2) the devisees named in her will, if she had a will; or (3) to the new owners if her cabin is sold. The personal representative would complete this transfer by signing and recording a notarized personal representative's deed.
Although the law does not require it, filing a copy of the Notice of Administration with the court where the probate started is a good idea.
The law that governs property outside the county of administration but inside New Mexico is NMSA 1978, Section 45-1-404.
Information about this topic and many others is available on the Bernalillo County Probate Court's web site, www.bernco.gov/probate_judge. My previously published columns are also posted on the web site.
© 2006, Merri Rudd & Albuquerque Journal, All Rights Reserved