A transfer on death (TOD) deed is like a regular deed you might use to transfer your New Mexico real estate, but with a crucial difference: It doesn't take effect until your death. At your death, the real estate goes automatically to the person you named to inherit it (your "beneficiary"), without the need for probate court proceedings. (N.M. Stat. Ann. §§ 45-6-401 to 45-6-417.)
You must sign the deed and get your signature notarized, and then record (file) the deed with the county clerk's office before your death. Otherwise, it won't be valid.
The beneficiary's rights. The person you name in the deed to inherit the property doesn't have any legal right to it until your death—or, if you own the property as a "joint tenant" with someone else, until the last surviving owner dies. (More on this below.) The beneficiary doesn't sign the deed, but it's a good idea to let the beneficiary know you've recorded it. Otherwise, he or she might not know about it, even after your death.
Earlier wills or TOD deeds. If you have made a will or previous TOD deed that leaves the property to someone, your new TOD deed will override it.
Your rights. You keep complete ownership of, and control over, the real estate while you're alive. You pay the taxes on it, and it's not protected from your creditors. You can sell it, give it away, or mortgage it. Because you're not making a gift of the property, there's no federal gift tax.
Medicaid. In New Mexico, creating a TOD deed won't affect whether or not you are eligible for Medicaid. Because you own the property and are not actually giving it away during your lifetime, a TOD deed won't help you "spend down" your assets to help you qualify for Medicaid. Beware, though, that if you do end up receiving Medicaid benefits—for example, to pay for nursing home care—your home might be liable for reimbursement of Medicaid expenditures. In other words, your TOD deed might protect your house from Medicaid estate recovery, or it might not. (While New Mexico law currently allows Medicaid recovery only from probate property—which does not include TOD property—it does allow creditor claims against TOD property. New Mexico began allowing TOD deeds in 2014, and the overlap between Medicaid and TOD property is still playing out.) If you have questions, consult a local attorney.
Other creditor claims. Even though your TOD deed transfers your property outside of probate, if your probate property isn't enough to satisfy certain creditor claims and statutory allowances (certain amounts your spouse and children are entitled to at your death, set out by law), your TOD beneficiary might be liable for these claims. However, the amount of liability will never exceed the value of the property.
Revoking the deed. If you later change your mind about who you want to inherit the property, you are not locked in. You have two options: (1) sign and record a revocation or (2) record another TOD deed, leaving the property to someone else. You cannot use your will to revoke or override a TOD deed.
How ownership is transferred. After your death, the beneficiary automatically gets title to the property. Depending on the requirements of your particular county, the beneficiary might need to record a certified copy of the death certificate in the county clerk's office and pay a small recording fee, or the beneficiary might be asked to take a copy of the death certificate to the county assessor's office. No probate is necessary.
If you own the property with someone else, how to proceed depends on how you and the other co-owners hold title to the property. If you don't know how you hold title, start by looking at the deed that transferred the property to you. It might say, for example, "to Ellen Bauman and Edward M. Bauman, as joint tenants" or "to Jonathan G. Costa and Sandra L. White, as tenants in common."
There are a few common ways to co-own property in New Mexico:
Joint tenancy (also called "joint tenancy with right of survivorship"). If you co-own real estate as joint tenants with right of survivorship, when one co-owner dies, that co-owner's share of the property will automatically go to the surviving co-owner(s). You can make a TOD deed together with the other joint tenant(s) or you can make one on your own, but it's important to understand the difference.
When you make a TOD deed together with the other joint tenant(s), you are naming someone to receive the property after all of the joint tenants have died.
Example: Claire and Kendra co-own their home as joint tenants. They make a TOD deed together and name Oscar as the beneficiary. When Claire dies, Claire's half of the home goes to Kendra, who becomes the sole owner of the entire home. When Kendra dies, the home goes to Oscar under the TOD deed.
If you make a TOD deed on your own, without the other joint tenants, the deed will be effective only if you are the last surviving owner of the property. If you die first, the surviving co-owner(s) will own the property, and the TOD deed won't have any effect.
Tenancy in common. If your deed doesn't state how you own the property, you and your co-owners are presumed to own it as tenants in common, unless you've agreed otherwise in writing. If you own your property as a tenant in common, it's best to create a TOD deed on your own (without the other tenants in common). That TOD deed will transfer only your share of the property to the TOD beneficiary when you die.
Example: Raymond and Jack, who are brothers, own a house together as tenants in common. Raymond signs a TOD deed that leaves his half-interest to his daughter. At Raymond's death, his daughter will become a tenant in common with Jack.
Community property. New Mexico real estate acquired by a married person is generally the couple's community property. Community property can be owned either as a joint tenancy or as a tenancy in common. Again, look at your deed to find out how you co-own the property; for example, it might say, "Adriana Sanchez and Joel Gutierrez, wife and husband, as joint tenants."
If you're not sure how you co-own the property or whether or not your spouse has any rights to it, consult a lawyer. While the guidance here fits most situations, if you have a complicated situation or more complex aims, you should turn to a lawyer for a more tailored solution.
Revoking a jointly made deed. If you sign a TOD deed with a co-owner, the effect of revocation depends on how you co-own the property and who does the revoking.
If you co-own the property as joint tenants and/or with "right of survivorship," your co-owner will automatically own the entire property upon your death (and vice versa). So:
If you co-own the property as tenants in common, we do not suggest making a TOD deed with your co-owner in the first place (see above). But if you did, here is how revocation would work:
Trust property. If you hold real estate in a trust, you probably won't need to use a TOD deed, because trust property doesn't need to go through probate anyway. If for some reason you want to use a TOD deed instead, you'll probably need to transfer the property out of the trust first. Talk to a lawyer about your estate plan.
You can name anyone you please to inherit your real estate—a person, more than one person, or an organization such as a favorite charity. But if you want to name more than one person, or a minor, there are some issues you should consider.
More than one beneficiary. Before you name multiple beneficiaries on your transfer on death deed, make sure you consider 1) how the co-beneficiaries will hold title to the property after you die, 2) what will happen if one of the co-beneficiaries dies before you do, and 3) how the beneficiaries will feel about co-owning the property.
As to the first issue, when you make WillMaker's transfer on death deed for New Mexico, your property will transfer to your beneficiaries in equal shares with no right of survivorship. This is the default under New Mexico law. In other words, your beneficiaries will own your property as tenants in common and each beneficiary will be free to leave his or her share to someone else or to sell that share of the property.
Example: You name Tim, Stephanie, and Rebekah as your TOD beneficiaries. After you die, they will own the property as tenants in common. Tim leaves his one-third share of the property to his son Cameron in his will. Stephanie sells her one-third share of the property to Anya. After Tim dies, Cameron, Anya, and Rebekah own the property.
As to the second issue, if one or more of the beneficiaries dies before you do, their share or shares of the property will be transferred to the surviving beneficiaries.
Example: You name Tim, Stephanie, and Rebekah as your TOD beneficiaries. Tim dies before you do. Stephanie and Rebekah would each inherit half the property. They would own it as tenants in common, and are each free to sell or leave their half of the property to someone else.
Finally, think carefully about how your beneficiaries will feel about owning the property together. Co-ownership is cumbersome and often causes tension. For example, one co-owner could force a sale of the property even if the other co-owners didn't want to sell.
Children under 18. Think twice about naming a child under age 18 as a beneficiary. A child can take title to the property, but an adult will need to manage it.
When making a TOD deed with WillMaker, you can name an adult "custodian" under the New Mexico Uniform Transfers to Minors Act UTMA) to manage the property. Under New Mexico's UTMA, the beneficiary becomes the outright owner of the property at age 21.
You may have other options for naming an adult property manager, including:
For more information, see Naming a Minor Beneficiary for a Transfer on Death Deed. For help setting up a property management method, consult a qualified estate planning lawyer.
Alternate beneficiaries. If you wish, you can name an alternate (successor) beneficiary. This beneficiary will inherit the property if your first-choice beneficiary (or all of them, if you named more than one) die before you do.
The 120-hour rule. Your transfer-on-death deed will be subject to New Mexico's 120-hour survival rule, which states that your beneficiary must survive you by 120 hours (or 5 days) to receive the property. The goal of this survivorship rule is to prevent your property from going to your beneficiary's beneficiaries—rather than to your own beneficiaries—if you and that beneficiary die close in time.
Example: Sarah uses a transfer-on-death deed to leave her house to her brother Juan. Her deed states that the deed is canceled if Juan does not survive her. If Sarah and Juan are in a car accident together and Sarah dies on June 10, and Juan dies on June 12, the 120-hour rule means that the deed will be canceled, and the house will go to Sarah's residuary estate. (If the 120-hour rule were not in place, Sarah's house would go to Juan's estate rather than her own.)
Several kinds of legal descriptions are used in New Mexico. Just copy what's on the previous deed that transferred the property to you. Here are two examples:
If the legal description is too long to safely type out (they can even run several pages long), simply photocopy or scan and print it, and attach it to the transfer on death deed as "Exhibit A."
The following Q&A is written by the New Mexico legislature. Read it carefully before creating your TOD deed in New Mexico.
What does the Transfer on Death (TOD) deed do? When you die, this deed transfers the described property, subject to any liens or mortgages (or other encumbrances) on the property at your death. Probate is not required. The TOD deed has no effect until you die. You can revoke it at any time. You are also free to transfer the property to someone else during your lifetime. If you do not own any interest in the property when you die, this deed will have no effect.
How do I make a TOD deed? Complete the TOD deed. Have it acknowledged before a notary public or other individual authorized by law to take acknowledgments. Record the deed in each county where any part of the property is located. The deed has no effect unless it is acknowledged and recorded before your death.
Is the "legal description" of the property necessary? Yes.
How do I find the "legal description" of the property? This information may be on the deed you received when you became an owner of the property. This information may also be available in the office of the county clerk for the county where the property is located. If you are not absolutely sure, consult a lawyer.
Can I change my mind before I record the TOD deed? Yes. If you have not yet recorded the deed and want to change your mind, simply tear up or otherwise destroy the deed.
How do I "record" the TOD deed? Take the completed and acknowledged deed to the office of the county clerk of the county where the property is located. Follow the instructions given by the county clerk to make the deed part of the official property records. If the property is in more than one county, you should record the deed in each county.
Can I later revoke the TOD deed if I change my mind? Yes. You can revoke the TOD deed. No one, including the beneficiaries, can prevent you from revoking the deed.
How do I revoke the TOD deed after it is recorded? There are three ways to revoke a recorded TOD deed: (1) Complete and acknowledge a revocation form, and record it in each county where the property is located. (2) Complete and acknowledge a new TOD deed that disposes of the same property, and record it in each county where the property is located. (3) Transfer the property to someone else during your lifetime by a recorded deed that expressly revokes the TOD deed. You may not revoke the TOD deed by will.
I am being pressured to create this deed. What should I do? Do not create this deed under pressure. Seek help from a trusted family member, friend or lawyer.
Do I need to tell the beneficiaries about the TOD deed? No, but it is recommended. Secrecy can cause later complications and might make it easier for others to commit fraud.
I have other questions about this deed. What should I do? This deed is designed to fit some but not all situations. If you have other questions, you are encouraged to consult a lawyer.
Accurate, plain-English legal information can help many people create useful legal documents. But general information is never a substitute for personalized advice from a knowledgeable lawyer. If you want professional advice about the best way to craft or use legal documents in your particular circumstances, consult an attorney licensed to practice in New Mexico.