When someone who owns property in multiple states passes away, it raises the possibility of multiple Probate proceedings in several jurisdictions which can be complicated and costly. If a person owns property in New Mexico but resides in another state when he or she dies, there are a number of estate planning strategies that can prevent the need for Probate in New Mexico. The real property owner can title the property in joint tenancy with right of survivorship so that it automatically passes to the joint tenant upon death of the co-owner. The property may also be placed in a Trust so that there is no need for Probate. A transfer on death deed also may be utilized to make Probate unnecessary.
While most sophisticated parties that own real estate in multiple states will have an Estate Plan that utilizes one of these strategies, an ancillary probate may be employed where none of these options exist. If you live outside of New Mexico but own real estate in the state, the ancillary Probate process provides a way to transfer the property in an expedient and cost-effective manner if you have an open Probate in another state.
To utilize the ancillary Probate process, the Personal Representative (referred to as the “Executor” in some states) must furnish a certified copy of the appointment from the court handling the Probate process where the decedent was domiciled when he or she died. If a bond was posted in that Probate proceeding, a certified copy of the bond must also be provided to the New Mexico court. Once these documents have been provided, the Personal Representative will be granted approval to transfer the real property. This transfer is typically accomplished by way of a Personal Representative deed to the beneficiaries.
Although there is an alternative resolution to transferring New Mexico real estate when the decedent was not domiciled in New Mexico at the time of passing, which is referred to as a “Proof of Authority,” this process does not generate an order from a New Mexico court. Our New Mexico Probate Attorneys typically opt for the ancillary Probate process because there is less chance that the title insurance company will raise issues when the property is sold.
The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. If you are the Personal Representative/Executor of an estate being probated outside of New Mexico that contains real property in New Mexico, we suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights.