Real Property as Part of Estate
Estates involving real property (such as land, houses, farms, ranches, leases, gas, mineral, water and timber rights) may require additional court procedures in order to pass clear title on to the heirs or devisees.

The general rule is that change of title to real property, including all assignments or other instruments of transfer of royalties in the production of oil, gas or other minerals on any lands in this state, must be recorded in the clerk’s office of the county of the state where each piece of real property is located.

Depending on the terms of a decedent’s will, the personal representative may use, sell, or restrict the use of a property's natural resources, such as timber or minerals lying beneath the surface. However, other natural resources, such as surface and underground water, oil, and gas, move about without regard to property lines. Their removal is subject to state and federal regulations. The personal representative passing title to such property should consult an attorney regarding these matters.

The personal representative appointed by the Court has legal authority to sell real property or to transfer title to it via a “Personal Representative’s Deed” from the estate to the new owner(s). This Deed must be signed by the personal representative in the presence of a notary public, who then notarizes the deed. Record the Deed as noted above.

Probate Opened in Your County, with Real Property Located in New Mexico, but Outside of Your County

Section 45-1-404 pertains to real property outside the county of administration of the probate. It states:

“A. If real property is included in an estate and is situate in a county other than the county wherein the estate is being administered, the personal representative shall, or any other interested person may, record with the county clerk of the other county a notice of administration setting forth:

1. the name of the decedent;
2. the title and docket number of the administration proceedings;
3. a description of the type of administration;
4. the court wherein instituted;
5. the name, address & title of the personal representative; &
6. a complete description of the real property situate in such county.”

Real Property Located Outside of New Mexico
If the estate involves real property, including oil, gas and other mineral rights, located outside of New Mexico, the personal representative of the estate may need to file a separate probate in the county in the state where the property is located. These kinds of probates are sometimes called ancillary probates. People should contact the court and/or the county clerk's office in the state where the property is located for more information on how to proceed. The Internet can provide access to some of this information.

This situation could arise under two circumstances: 1) decedent died domiciled in New Mexico, but owned real estate, oil, gas or other mineral rights, in Oklahoma, New York, Texas, or another location outside of New Mexico; or 2) decedent died domiciled outside of New Mexico, but owned real estate, oil, gas or other mineral rights within New Mexico. In the first circumstance, an ancillary probate would probably be required in the other state, depending on that state’s law. In the second circumstance, the personal representative could use Section 45-3-201(A)(2) to begin a probate here if no other probate had been opened in the state of domicile. However, if a probate had already been started in the other state of domicile, then authenticated copies of documents as provided in Sections 45-3-301, 303 and 308 would provide guidance.

Manufactured (Mobile) Homes as Part of Estate
Some people think that manufactured (mobile) homes are real property. Since most manufactured homes are moveable, they are considered personal property like automobiles and must be registered and licensed. They usually have license plates like vehicles. Unless they are permanently affixed to the ground, manufactured homes receive a title from the Motor Vehicles Division (MVD).

Often, if a manufactured home is titled in the sole name of the decedent, MVD will allow the personal representative to transfer title through a form, called “Certificate of Transfer Without Probate.” This Certificate is similar to an “Affidavit of Successor in Interest,” discussed in the Judge’s Glossary, above, and in Section 45-3-1201. Check MVD’s website, http://www.state.nm.us/tax/mvd/mvd_home.htm for more information. See also Sections 66-1-4.11, 66-6-10.

Ancillary Probates
An ancillary proceeding is one where a probate has been previously opened in the state or country where the decedent was domiciled at the time of his or her death. Ancillary probates may also be opened when the decedent died in New Mexico, but another state requires a probate to pass, for example, real property in the other state.

An informal probate of a will that has been previously probated in another state or foreign country may be granted at any time upon written application by any interested person, together with an authenticated copy of the will and of the order or statement probating it from the office or court where it was first probated (see Section 45-3-303D).

If the Applicant is the domiciliary personal representative (the personal representative appointed in the place the decedent was domiciled) and the decedent was not domiciled in New Mexico, informal proceedings may be allowed (see Section 45-3-308C).

Section 45-4-207 discusses ancillary probates in a formal proceeding.

Proof of Authority
If an out-of-state decedent owned real or personal property that needs New Mexico authority to transfer, a foreign personal representative or attorney can use a proof of authority, pursuant to Section 45-4-204. Requirements to use a proof of authority are:

• Personal representative appointed in another state.
• Need for transfer of real or personal property in New Mexico.

The personal representative from other state files in the court in the county where the property is located:

1. authenticated copies of his appointment and of any bond he has given, and
2. a statement of the domiciliary foreign personal representative's address.

The probate judge does NOT issue letters in a Proof of Authority case! A Proof of Authority may not be sufficient for some title companies. If it fails to provide the authority needed for the transaction, then an ancillary proceeding can be used. Charts outlining the procedures to use for out-of-state decedents and the differences between Proof of Authority and Ancillary administrations are at the end of this section of the manual.