Ask the Probate Judge—Titling the House
By Merri Rudd, appeared September 6, 2001 Albuquerque Journal, Business Outlook
Reprinted with permission
Q: My husband and I have been married 20 years and my name has not been added to the house title. He owned the house for three years before we married and did not want to go through the expense of obtaining a new title deed. What consequences might we face if he passed away first without adding my name to the deed? His will does name me as beneficiary of all property and other assets. M.A. via e-mail
Under New Mexico law the house is probably your husband’s separate property since it was acquired prior to the marriage. (You might have a claim against a portion of the house if you used community income to pay for house equity during your marriage.)
Your husband could retitle the house by creating a new deed to both of you as joint tenants and as community property, if he wishes. Title companies routinely insure title for such deeds. Hiring an attorney to draft a new deed should cost less than $100. Then at the death of the first spouse, the house would pass automatically to the surviving joint tenant spouse.
For whatever reason, your husband may want to keep the house titled in his sole name. If he were to die first, you would need a court probate proceeding to pass legal title to the house to you as the beneficiary under his will.
To start a probate, you would submit paperwork, including his original will, to the Probate Court or District Court. The Court would appoint the personal representative (presumably you?) named in his will to handle his estate business. You would then have the legal authority to create a new deed from the estate to yourself as the new owner.
At least you two have wills. If you did not, under New Mexico’s law of intestate succession, his "separate property" house would pass 1/4 to you, and the other 3/4 to your children (if you have any). If you do not have children, the house would pass 100% to you even if he had no will. Under this scenario, passing title to you would still require a court probate proceeding.
Another option: the New Mexico legislature passed a law effective June 2001 that allows property owners to create a "transfer on death" deed (TODD) naming a beneficiary recipient. This deed must be prepared during the owner’s lifetime, and the owner MUST record the deed in the office of the county clerk in the county where the property is located. At the owner’s death, the property would pass directly to the named beneficiary without a probate.
© 2001, Merri Rudd & Albuquerque Journal, All Rights Reserved