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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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Probating Real Property & Personal Representative's Deeds

3:18 PM
Merri Rudd

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 property.

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 or purchasers.

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 

Appeared April 7, 2005, Albuquerque Journal, Business Outlook 
Reprinted with permission

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