How to Transfer Property to a Child After a Spouse's Death — New Mexico | New Mexico Probate | FastCounsel
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How to Transfer Property to a Child After a Spouse's Death — New Mexico

August 18, 2025 6 min read

Step-by-step guidance for transferring real property to a child after a spouse dies — New Mexico

Disclaimer: This is general information, not legal advice. I am not a lawyer. Laws change and every situation is different. Consult a licensed New Mexico attorney or your county clerk for advice tailored to your facts.

Detailed Answer

When a spouse dies and you want real property to become your child’s ownership in New Mexico, the exact steps depend on how title was held before death. Common possibilities are:

  • Joint tenancy or tenancy by the entirety with right of survivorship;
  • A recorded Transfer-on-Death (TOD) deed or other beneficiary deed;
  • Title held solely in the decedent’s name (no survivorship or TOD), with or without a will;
  • Title held in a living trust.

Follow these general steps and use the path that fits your facts.

1) Gather documents

  1. Obtain multiple certified copies of the death certificate from the office that issues New Mexico death certificates (often the county clerk or the Vital Records office).
  2. Get the current recorded deed (from the county clerk/recorder) to see how the decedent held title. Note the full legal description of the property, the names on title, and whether the deed says “joint tenants,” “with right of survivorship,” or names a beneficiary.
  3. Locate any will, trust documents, or a recorded TOD deed if one exists.
  4. Collect mortgage statements, property tax bills, and any lease or title insurance policy that may help determine encumbrances or survivorship language.

2) Determine the correct legal path

Choose the right path below based on how title was held:

  • If title showed joint tenancy or survivorship: In many cases the surviving co-owner becomes sole owner automatically upon the spouse’s death. You will typically record a certified death certificate and, in some counties, an affidavit of survivorship. Check with your county clerk/recorder for any local form or requirement.
  • If there is a recorded TOD or beneficiary deed: Record the decedent’s death certificate and any affidavit required by the TOD statute or county. A recorded TOD deed often transfers ownership directly to the named beneficiary outside probate.
  • If title was solely in the decedent’s name and there is a will: You normally must open probate (formal administration or summary probate if eligible), have a personal representative appointed, obtain a court order or final decree of distribution, and then have the personal representative execute and record a new deed transferring the property to the heir (your child).
  • If title was solely in the decedent’s name and there is no will (intestate): New Mexico intestacy rules determine heirs (typically spouse and children). You will likely need to open probate (administration) so the court can determine the heirs and authorize transfer. The administrator will execute and record a deed to transfer title to the heir(s).
  • If the property is held in a living trust: The successor trustee follows the trust terms and records a trustee’s deed transferring title to the beneficiary (your child) as provided by the trust.

3) If probate is required: key steps

  1. File a petition for probate in the New Mexico district court in the county where the decedent lived. The court appoints a personal representative (executor/administrator).
  2. The personal representative collects assets, notifies creditors, pays allowable debts, and seeks a court order or final decree distributing the real property.
  3. After the court authorizes the transfer (or after the personal representative prepares a statutory executor’s deed), the personal representative signs the deed conveying the property to your child. The deed must include the full legal description and be properly notarized.
  4. Record the new deed in the county clerk/recorder’s office where the property is located. Attach the court order or the letters testamentary/letters of administration as the county requires. Also record a certified copy of the death certificate if requested by the county.

4) If no probate is required because of survivorship, TOD, or trust

Record the required documents with the county clerk/recorder to show transfer of ownership. That usually includes a certified death certificate plus the beneficiary deed, affidavit of survivorship, or trustee’s deed. Even though the transfer may be “automatic” by law, recording is the key to clear public title.

5) Practical recording considerations

  • Use the same legal description from the recorded deed. Errors can cause title problems.
  • Check for outstanding mortgages — the lender may need to be notified and might have options or requirements.
  • Pay required recording fees and any documentary stamps or transfer taxes (if applicable locally).
  • Consider updating the county assessor’s ownership records and property tax mailing address after recording.

6) Title clearance and future protection

After recording, get a title search or an updated title insurance commitment to confirm the child’s ownership is clear. If liens or clouds exist, you may need a quiet-title action or other legal steps.

Relevant New Mexico resources

Helpful Hints

  • First step: get several certified death certificates. Recording, banks, and other agencies usually require them.
  • Check the recorded deed immediately. The language in that deed (joint tenancy, survivorship, named beneficiary) usually answers whether probate is necessary.
  • If you find a TOD deed, make sure it was properly executed and recorded before death. A recorded TOD is usually effective outside probate.
  • Contact the county clerk/recorder where the property is located to ask what documents they require to record a transfer after death. Counties can have slightly different document checklists and fee schedules.
  • Consider obtaining a title search or contacting the decedent’s title insurance company to learn about any liens, mortgages, easements, or title defects.
  • If the estate looks complex (multiple properties, large debts, contested claims, or disputes among heirs), hire a New Mexico probate attorney for help. An attorney can prepare court papers, deeds, and make sure the transfer is done cleanly.
  • Keep clear records of all filings, receipts, and communications. These documents simplify future property sales or refinancing.

If you want, tell me how the deed was held (exact wording on the recorded deed, whether there is a will, or whether there is a recorded TOD or trust). I can then outline which specific documents you will likely need to record in your county and a short checklist of forms to file.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney.