Ask the Probate Judge—TODD Questions
Rudd, appeared April 12, 2007, 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: Your recent column talked about how to change a transfer on death deed (TODD). Is there also a way to revoke a TODD entirely and just let the house go through probate upon my death? Thanks.
Yes, a TODD may be revoked at any time by the record owner. The owner must execute, acknowledge and record in the office of the county clerk in the county where the real property is located a writing describing the interest and revoking the TODD designation. The signature, consent or agreement of or notice to a grantee beneficiary of a transfer on death deed is not required for the revocation.
If, instead, someone adds another person onto the house deed as a joint tenant, the other joint tenant must agree in writing to any title changes to the house. When I give talks around town, I have encountered distraught homeowners who added an adult child as a joint tenant to their homes and then decided to sell. The child refused to sign off on the deed to sell the home, effectively blocking the sale.
The TODD revocation provision illustrates yet another feature that is superior to a joint tenancy. The TODD law gives full power to the owner to change or revoke a TODD without the permission or agreement of anyone else.
Q: I appreciated the information you gave in the Journal March 15 regarding wills and transfer on death deeds (TODDs). Is it necessary to have an attorney fill out the TODD or can a person get a copy, fill it out and have it notarized? An attorney for senior citizens told me it would cost about $100. M.M.
People are always free to draft, sign, execute and record their own legal documents. Whether this is wise is a different inquiry.
Due to the frequency of this question, I have added a link to the entire TODD law on my web site www.abogadapress.com. The law includes a sample TODD form.
It is vital that the legal description and designation of beneficiary on a TODD be correctly written. In my opinion, having a reputable attorney prepare and record a TODD deed is preferable to drafting your own. One hundred dollars for a properly drafted and recorded TODD seems quite reasonable to me.
Q: My mom designated me as her beneficiary on a transfer on death deed (TODD). She still has a mortgage on her house and is now quite ill. Will I inherit her mortgage as well as her house?
New Mexico's TODD law states, "Grantee beneficiaries of a transfer on death deed take the record owner's interest in the real estate at death subject to all conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner or to which the record owner was subject during the record owner's lifetime and to any interest conveyed by the record owner that is less than all of the record owner's interest in the property."
The short answer to your question is, "Yes, you inherit the mortgage as well as the house."
© 2007, Merri Rudd & Albuquerque Journal, All Rights Reserved