When a person passes away, questions often arise about who is entitled to their home, personal property, money, and other assets. Open communication with family members is important to help prevent conflicts and legal issues later. Family members should identify the owners and their share of the property, discuss the owners’ rights and responsibilities and plan for managing or developing the property.
If no steps have been taken to plan an estate, various legal issues may arise. Resolving these issues can involve the probate process, a court‑appointed administrator, or other legal documents and proceedings, which can be time‑consuming and costly.
Home/Property Issues That May Arise
Issues with the home/property titles can arise after an owner dies. Title refers to your ownership, or the rights you have to use the property. This can include full rights/ownership or partial rights. Anyone who has title, or rights to a property, can access the land, potentially modify, or seek to sell their portion of ownership. There are several reasons a title may not be clear.
- Heirs’ Property: A phrase used when home and land are informally passed down from ancestors over many generations because the ancestor died without a will, or without any other legal document transferring ownership. This can lead to a “cloudy title” with multiple owners that can have different opinions about what they want to do with the land or home.
- Unclear or Cloudy Title: A phrase used when a property has multiple owners, or multiple people with a partial ownership claim. This can happen when properties are inherited or passed down without properly transferring the ownership of the property.
- Separation or Divorce: Title issues can arise in cases where a couple separates but does not complete divorce proceedings. Unfiled deed or inheritance transfer issues can complicate the title when selling the property.
- Fraudulent Activities: Illegal attempts involving falsified deeds entering the public record.
Will
A will is a legal document that explains what should happen to a person’s assets after they die. Anyone who owns assets should have a will, as it helps prevent disagreements and legal disputes among people who may believe they are entitled to those assets. A will also ensures that a person’s assets are distributed according to their wishes, rather than being decided by the court.
A will cannot control life insurance policies, retirement accounts, Payable-on-death and transfer-on-death accounts, jointly owned property with right of survivorship or assets held in a trust.
Probate
Probate is the legal process through which a court grants a person the legal authority to handle the legal affairs of a person who has died (the “decedent”).
There are two types of Probate cases that can be filed in Probate Court, Testate (with a will) and Intestate (without a will).
Testate (with a will): A will is a legal document that states what a person wants to happen with their assets when they die. Wills are usually kept by the decedent (hopefully in a safe or in a secure location that someone trustworthy has access to) or with an attorney who assisted decedent in completing the will.
You will need the original will and a certified copy of the decedent’s death certificate when you are filing a probate case.
Once you have the original will and certified copy of the decedent’s death certificate, you will need to identify the:
Devisees-persons listed in a will to receive assets from an estate, beneficiary.
Heirs-those persons who are entitled to the property of the decedent if the decedent dies intestate.
County and choose whether to file in Probate Court or District Court If you cannot find the original Will, the case must be filed in District Court.
Intestate (without a Will): In cases where no Will exists (known as intestacy), the Court must determine the rightful heirs and appoint someone to administer the estate according to state law.
Probate is necessary:
When a person dies leaving property titled in his/her name (real estate, bank accounts, vehicles, stocks and bonds, etc.). This property is called the “decedent’s estate.”
Probate can be filed any time between 5 days and 3 years after the decedent’s death.
Probate is NOT necessary:
- To transfer property that is not “titled”- personal items including furniture, jewelry, artwork, and other personal effects.
- If the decedent (deceased) has arranged for a non-probate transfer of titled property- real estate held as Joint Tenants, real estate with a recorded Transfer on Death Deed, bank accounts with Payable on Death designations, brokerage accounts with death beneficiary designations, etc.
For questions about self-representation in Probate matters and Probate forms, you may find more information here: https://selfrepresentation.nmcourts.gov/probate/.
Possible ways to transfer assets to new owner:
- Assets that are passed along directly to a named, living person (a beneficiary) or joint owner:
- Life insurance where the buyer designates the beneficiary or beneficiaries-the person or persons who will get the payments from the policy when the buyer passes.
- Retirement plans where the employee names the beneficiary or beneficiaries (person or persons that will inherit the plan).
- Revocable living trusts are a legal entity that owns the assets the person places in it. The person tells the trust how to manage the assets and names a trustee. The trustee’s job is to manage the assets according to the instructions. When the person dies, the instruction for the trust say who gets which assets and dictate when the property is transferred to them. In most cases, the heirs don’t have to do or prove anything else.
Small Estate – Affidavit of Successor in Interest
Does not require probate and is defined as one where the decedent’s total estate is worth less than $50,000 and does not include any real property (land, house, farm, etc.).
This process allows heirs to bypass probate proceedings, expediting asset distribution, and reducing administrative burdens. If the decedent’s estate qualifies as a small estate, the decedent’s property can be distributed using an “Affidavit of Successor in Interest” if:
- At least 30 days has passed since the decedent’s death and
- A probate case has not been filed.
The affidavit must be signed by the person entitled to receive the decedent’s property and notarized. It can be presented to banks to collect the decedent’s money and other institutions such as Motor Vehicle Division, to change title to the decedent’s vehicles.
Affidavits of Surviving Spouse
This affidavit can be used to transfer the decedent’s primary residence to the decedent’s surviving spouse without probate.
Requirements to use this affidavit are:
- At least 6 months have passed since the decedent’s death; and
- Probate has not been filed; and
- The only item required to be transferred from the decedent’s estate is the decedent’s primary residence; and
- The decedent and spouse owned the residence as community property or the decedent left (by Will) his/her interest in the residence to the spouse; and
- The full value of the residence, as assessed for property tax purposes, does not exceed $500,000.00 (five hundred thousand dollars).
The affidavit must be signed by the surviving spouse and notarized then filed with the county clerk in the county in which the residence is located.
You may find more information at New Mexico Statutes Section 45-3-1205 (2025) - Transfer of title to homestead to surviving spouse by affidavit.
Transfer on Death Deeds (TODD)
This deed transfers the described property, subject to any liens or mortgages (or other encumbrances) on the property at the time of your death. While the TODD has no effect until you die, you may revoke it at any time. You may also transfer the property to someone else during your lifetime.
Probate is not required if there is a TODD, and you cannot revoke the TODD in a will.
The TODD must be signed, notarized, and recorded with the county clerk in the county in which the property is located, before the owner’s death. Failure to record the deed renders before the owner’s death, renders it invalid, subjecting the property to probate.
Upon the death of the owner, the beneficiary will need to take a certified copy of the owner’s death certificate to the county clerk’s office to be recorded and complete the transfer.
You may find more information on NM Transfer on Death Deeds at New Mexico Statutes Section 45-6-416 (2025).
