By Merri Rudd, appeared October 5, 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: We had a transfer on death deed (TODD) made for my mother. She is leaving her property equally to my two sisters and me. The deed was recorded in Bernalillo County. My mother lives in the portion of Corrales that was recently changed to Sandoval County. Do we need to re-file the TODD? I also notice that her will and health care directive have Bernalillo County written on them. Even though they are not recorded with the county clerk, do they need to be rewritten? I would very much appreciate your thoughts on this. C.P., Corrales

The short answer is that your mother's TODD does not need to be re-filed. But I had to consult Sandoval County Attorney David Mathews to answer this fascinating question because I had no idea about the property aspects!

Mr. Mathews says that Sandoval County and Bernalillo County decided not to change property records that were previously filed in the Bernalillo County Clerk's office. Post-annexation deeds are recorded in the county where the property is now, i.e. Sandoval County. Pre-annexation deeds remain where they were originally recorded, i.e. Bernalillo County.

Mr. Mathews says that nothing needs to be changed or rewritten because of the annexation. When your mother's TOD property is sold or the transfer completed, those documents will be recorded in Sandoval County. The title companies are aware of this decision, and it should not cause them any difficulty. It was decided that transferring Bernalillo County records to Sandoval County was an impractical waste of the taxpayers' money.

According to Mr. Mathews, Bernalillo County was established by sections of state statutes in 1851, with a modification of the south boundary in 1869. We're not sure when Corrales became a "community," but there are buildings, such as Casa Vieja and Perea's Restaurant, that date from the 1740's. The task of transferring property records from one county to another would be massive and unnecessary.

The will and health care directive are not county-specific, so unless your mother's wishes have changed, those documents do not need to be changed. Even if your mother leaves New Mexico, those documents should be honored in any other state under the Full Faith and Credit Clause of the U.S. Constitution. Likewise, New Mexico honors wills and health care directives from other states, as long as those documents were created validly in the other state.

Q: Is there a difference between attorneys and lawyers in New Mexico?

I wanted to impress my editor by writing 500 words about this topic. I could discuss the history of the terms "lawyer," "attorney," "counsel," "solicitor," "barrister," and others. I could report that New Mexico's Rules of Professional Conduct call us "lawyers," but the Rules Governing Discipline use the term "attorney." I could highlight which laws interchange the terms "attorney," "lawyer," "counsel," and "members of the state bar." Then I decided most readers would prefer that I expound no further on this subject.

Law dictionaries make the distinction that lawyers are licensed to practice law an attorneys are designated to transact business for another, such as a legal agent or attorney-in-fact.

But the bottom line is that New Mexico laws use the two terms interchangeably. Lawyers and attorneys are basically synonymous in our state.

Either way, one should not practice law or prepare legal documents for others unless one is an attorney or lawyer licensed in New Mexico.

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