New Mexico Homestead Affidavit

Working as a probate attorney in New Mexico, one of the common questions I am asked is whether an estate will require probate. The answer to this question can depend on whether the decedent did any estate planning. One type of item that generally requires probate to transfer is real estate; transfer of real estate through probate in New Mexico can be avoided in several ways (using a New Mexico living trust, transfer on death deed, or re-titling the property as joint tenants are all sufficient ways to transfer real estate outside of probate).

Unfortunately not everyone has the foresight to leave their property in a manner that avoids probate. In certain cases a probate may not be needed to transfer personal property (see our article regarding the New Mexico small estate affidavit for more information). The problem with the small estate affidavit is that it does not allow for the transfer of real estate. The homestead affidavit comes from the New Mexico Uniform Probate Code at NMSA 1978 § 45-3-1206. A homestead affidavit can be used to transfer real property as long as the following requirements are met:

• Most importantly is that the homestead affidavit can only be used by the surviving spouse to transfer the couple’s homestead that was owned as community property.
• Homestead basically refers to the couple’s principal place of residence.
• The property cannot be worth more than $500,000 as assessed for purposes of property taxes.
• The homestead affidavit can be used either when the decedent died intestate or when the decedent’s will devises the home to the surviving spouse.
• Another important aspect is that the homestead affidavit cannot be used until 6 months have elapsed since the decedent’s death.

Once the homestead affidavit is prepared it can simply be recorded in the county where the homestead is located. This act serves to transfer title of the homestead to the surviving spouse. The affidavit itself must contain the following information (pulled directly from the statute):

1. six months have elapsed since the death of the decedent as shown on the death certificate;
2. the affiant and the decedent were at the time of the death of the decedent married and owned the homestead as community property;
3. a copy of the deed with a legal description of the homestead is attached to the affidavit;
4. but for the homestead, the decedent’s estate need not be subject to any judicial probate proceeding either in district court or probate court;
5. no application or petition for appointment of a personal representative or for admittance of a will to probate is pending or has been granted in any jurisdiction;
6. funeral expenses, expenses of last illness and all unsecured debts of the decedent have been paid;
7. the affiant is the surviving spouse of the decedent and is entitled to title to the homestead by intestate succession as provided in Section 45-2-102 NMSA 1978 or by devise under a valid last will of the decedent, the original of which is attached to the affidavit;
8. no other person has a right to the interest of the decedent in the described property;
9. no federal or state tax is due on the decedent’s estate; and
10. the affiant affirms that all statements in the affidavit are true and correct and further acknowledges that any false statement may subject the person to penalties relating to perjury and subornation of perjury.

Should you have any questions about whether a homestead affidavit can be used in your particular situation, then be sure to contact a New Mexico probate attorney.