Probate Judge on TOD Deeds

Ask the Probate Judge—Transfer of Death Deeds

By Merri Rudd, appeared February 27, 2003, Albuquerque Journal, Business Outlook 
Reprinted with permission

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: I just had my first case of a Transfer on Death Deed (TODD) not being recorded in time. Not only is there now a probate, but also the son, who would have received the house if the deed had been recorded, will receive just a one-third interest under the will. Please alert your readers about the importance of following all the requirements of the TODD law. P.T., Albuquerque, NM

A law allowing transfer on death deeds (TODD) took effect in June 2001. The TODD law only affects real property located in New Mexico. Examples of real property include houses, land, and ranches. The law allows a real property owner to create a TODD naming a beneficiary or beneficiaries to own that real property after the owner dies. The owner must sign the TODD in the presence of a notary public, who notarizes the owner's signature on the TODD.

The law requires that the TODD be recorded with the county clerk in the county where the real property is located. If the TODD is not properly recorded before the owner dies, the TODD is ineffective, as illustrated by the above question.

The beneficiary named in the TODD cannot control the property during the owner's lifetime. The owner is not required to deliver the TODD to the beneficiary, but telling the beneficiary where the deed is stored may prevent future problems. No matter what a will says, a properly recorded TODD determines who owns the real property after the owner's death.

A court probate to transfer the real property should be unnecessary. A probate for a decedent's other assets might be necessary, depending on how they are titled.