Nysha Lynn Livingston

Realtor®, ABR, AHWD, CBDA, CLE, CNHS, CRS, MCNE, RCC · MORE Realty · July 22, 2026

One of the most common concerns I hear from homeowners across the Albuquerque metro area is a simple one: "How do I make sure my family gets the house without going through probate?" It is a fair question. Probate in New Mexico can take six to nine months or longer, and the process adds stress to what is already a difficult time for families. Fortunately, New Mexico offers a straightforward solution: the Transfer on Death Deed, or TODD.

A Transfer on Death Deed allows you to name a beneficiary who will automatically receive your real property when you pass away — without the property ever entering probate. It is simple, inexpensive, and fully revocable during your lifetime. If you own a home in Albuquerque, Rio Rancho, Corrales, Placitas, or any community in New Mexico's metro area, understanding how TODDs work could save your family months of court proceedings and thousands of dollars in legal fees.

This guide covers everything you need to know about Transfer on Death Deeds under New Mexico law — including requirements, benefits, limitations, and how they compare to trusts and other estate planning tools.

What Is a Transfer on Death Deed?

A Transfer on Death Deed — also called a beneficiary deed — is a legal document that transfers ownership of real property to a designated beneficiary upon the owner's death. The key feature is that the transfer happens automatically at death, without going through probate court.

New Mexico adopted the Uniform Real Property Transfer on Death Act (URPTODA) in 2014, codified at Sections 45-6-401 through 45-6-417 NMSA 1978. This law gives property owners a clear, statutory framework for creating a TODD that is legally valid and enforceable throughout the state. It applies to any real property in New Mexico, including homes, vacant land, commercial property, and condominiums.

During your lifetime, the TODD has no effect on your ownership. You keep full control of the property. You can sell it, mortgage it, lease it, or give it away. The beneficiary you name has no rights to the property until the moment you die. You can change or revoke the deed at any time, for any reason, without asking anyone's permission.

How Does a TODD Differ from a Will or a Trust?

The three main ways to pass real estate to your heirs are a will (which goes through probate), a revocable living trust (which avoids probate but requires more upfront work), and a Transfer on Death Deed (which avoids probate for a single property with minimal effort). Here is how they compare:

Will

A will directs how your assets should be distributed after death, but it does not avoid probate. Any real estate titled in your individual name at death must go through probate court before it can be transferred to your beneficiaries. This process takes months and becomes part of the public record.

Revocable Living Trust

A trust is the most comprehensive way to avoid probate. When your property is properly titled in the trust's name, it passes directly to beneficiaries without court involvement. Trusts also handle non-real-estate assets, provide incapacity planning, and offer privacy. The tradeoff is higher upfront cost (typically $1,500 to $3,500 to set up in New Mexico) and the need to retitle assets into the trust.

Transfer on Death Deed

A TODD is a targeted probate-avoidance tool for a single piece of real estate. It is simple, inexpensive, and fully revocable. The deed must be signed, notarized, and recorded with the county clerk during your lifetime. When you pass away, the property transfers directly to your named beneficiary — no probate needed. A TODD is an excellent option for homeowners who want to avoid probate for their home without the complexity or cost of setting up a trust.

Importantly, a TODD is not a substitute for a comprehensive estate plan. It handles real estate only. You still need a will for other assets (bank accounts, vehicles, personal property), a health care directive, and a financial power of attorney. But for the home itself, a TODD is often the simplest and most cost-effective path.

Requirements for a Valid TODD in New Mexico

New Mexico law sets clear requirements for a valid Transfer on Death Deed. Getting these details right matters — a deed that does not meet the statutory requirements may be invalid, leaving the property to go through probate after all.

Essential Elements

Under Section 45-6-409 NMSA 1978, a valid TODD must satisfy these requirements:

Contain the essential elements of a properly recordable deed — including a legal description of the property, the name of the current owner (transferor), and the name of the beneficiary (transferee)
State clearly that the transfer is to occur at the transferor's death — the deed must include language making it a Transfer on Death Deed, not an immediate transfer
Be signed and notarized — the owner's signature must be acknowledged before a notary public
Be recorded in the county clerk's office where the property is located before the owner's death

If your property is in Bernalillo County (Albuquerque), the deed must be recorded with the Bernalillo County Clerk's Office. If it is in Sandoval County (Rio Rancho, Corrales), the recording must be with the Sandoval County Clerk. For properties in Santa Fe County, Torrance County, or any other New Mexico county, the same rule applies — record in the county where the land sits.

No Notice, Delivery, or Acceptance Required

Unlike a traditional deed, a TODD does not require the beneficiary to know about the deed, accept it, or even receive a copy while you are alive. The beneficiary has no rights or obligations during your lifetime. This means you can create a TODD without telling the beneficiary — useful if you want to keep your estate plan private until after your death.

Benefits of Using a TODD in New Mexico

For families in the Albuquerque metro, Transfer on Death Deeds offer several compelling advantages:

Avoids probate for the home. The property passes directly to the beneficiary without court involvement, saving months of time and thousands of dollars in legal fees. In the Albuquerque metro, where median home prices have reached historic highs, the cost savings can be substantial.
Full ownership during your lifetime. You keep complete control of the property. You can sell it, refinance it, rent it out, add a second mortgage, or change your mind and revoke the deed at any time.
Simple and inexpensive. Creating a TODD typically costs a few hundred dollars in attorney fees (or less if you use a standardized form) plus the recording fee at the county clerk's office. Compare that to a revocable living trust, which costs several thousand dollars.
Fully revocable. You can change or cancel the TODD at any point before death with a simple revocation form recorded in the same county.
Not subject to will contests. Because a TODD transfers ownership outside of probate, it is generally more difficult for disgruntled family members to challenge than a bequest in a will.
Preserves eligibility for government benefits. Since the beneficiary has no ownership interest during your lifetime, a TODD does not affect your Medicaid or other means-tested benefits.

How to Revoke a TODD

Life changes. You might want to change beneficiaries, add a spouse, or simply decide a trust is a better option. Under New Mexico law (Section 45-6-411), there are three ways to revoke a recorded TODD:

Record a revocation form that is signed and notarized in the same county where the original TODD was recorded
Record a new TODD that disposes of the same property — the new deed automatically revokes the old one
Record an ordinary deed that transfers the property to someone else and expressly revokes the TODD

One important rule: you cannot revoke a TODD by physically destroying the deed or by writing a will that contradicts it. Only a properly executed and recorded revocation or new deed will cancel a TODD. This is a common misconception — families sometimes believe that tearing up the deed or changing their will is enough, but New Mexico law requires the recording process.

For married couples who own property as joint tenants with right of survivorship, both spouses must act together to revoke the TODD. A sole revocation by one spouse has no effect until that spouse is the last surviving owner.

What Happens When the Owner Passes Away?

When the property owner dies, the Transfer on Death Deed takes effect automatically. The beneficiary does not need to go to court or file a probate petition. However, there are practical steps the beneficiary should take to clear title and establish their ownership:

Obtain a certified copy of the death certificate for each owner named in the deed
Record an affidavit of confirmation (sometimes called an affidavit of survivorship) with the county clerk where the property is located. This document identifies the deceased owner, references the recorded TODD, and confirms the beneficiary's ownership
Update the property tax records with the Bernalillo County Assessor's Office or the appropriate county assessor to reflect the new ownership
Consult with a title company or real estate attorney if the beneficiary plans to sell the property, to ensure the title is clean and marketable

The beneficiary should also be aware that inheriting property through a TODD comes with a stepped-up basis for tax purposes. Under federal tax law, the beneficiary's cost basis in the property is generally its fair market value at the date of the owner's death (or six months after, depending on the alternate valuation date). This can significantly reduce capital gains taxes if the beneficiary later sells the property.

Who Should Consider a TODD?

A Transfer on Death Deed is an excellent fit for many New Mexico homeowners, but it is not right for every situation. Here is a practical guide:

A TODD May Be a Good Fit If:

You own a single home or piece of real estate, you want to avoid probate for that property, and you have a straightforward beneficiary in mind. This is common for homeowners in Albuquerque, Rio Rancho, Corrales, Placitas, and other New Mexico communities who want a simple, low-cost estate planning tool for their primary residence.

Consider a Trust Instead If:

You own multiple properties, you have complex family dynamics (blended families, minor children, a beneficiary with special needs), you want incapacity planning, or you want to manage all of your assets — not just your home — in a unified estate plan. A trust also offers greater privacy and flexibility for distributing assets over time rather than all at once.

Common Limitations and Risks of TODDs

While TODDs are powerful tools, they have important limitations that every New Mexico homeowner should understand:

Real property only. A TODD covers only real estate. Bank accounts, investment accounts, vehicles, and personal property need separate arrangements (beneficiary designations, payable-on-death accounts, or a will).
No incapacity planning. A TODD has no provision for managing your property if you become incapacitated. You need a durable power of attorney and, ideally, a trust for that.
Does not override a mortgage or liens. If the property has a mortgage, the beneficiary takes the property subject to that mortgage. The Garn-St Germain Act protects beneficiaries from the due-on-sale clause in most cases, but the beneficiary must continue making payments or refinance.
Potential conflicts with other estate planning documents. A will that tries to give the property to someone different from the TODD beneficiary will not override the TODD. This can create confusion and conflict if your estate plan is not coordinated.
Medicaid recovery exposure. If you receive long-term care through Medicaid, the State of New Mexico may seek reimbursement from your estate after death. Since a TODD transfers property outside of probate, the property may still be reachable under certain circumstances. An elder law attorney can help you navigate this.
No protection from creditors. Unlike a trust, a TODD does not provide asset protection. Creditors of the beneficiary can reach the inherited property.

How to Create a TODD in New Mexico

Creating a Transfer on Death Deed in New Mexico is a straightforward process, but getting it right matters. Here is the recommended approach:

Consult with an attorney. While standardized TODD forms are available online, working with a New Mexico real estate or estate planning attorney ensures your deed meets all statutory requirements and coordinates with your overall estate plan. Attorney fees for a simple TODD typically range from $200 to $500.
Prepare the deed. The deed must include a complete legal description of the property (not just the street address), your name as the current owner, the beneficiary's full name, and language indicating the transfer is effective at death.
Sign and notarize. Your signature must be notarized. The notary public verifies your identity and witnesses your signature.
Record the deed. Take the signed, notarized deed to the county clerk's office in the county where the property is located and record it. Recording fees in New Mexico vary by county but are typically $25 to $50 per document.
Store the original. Once recorded, keep the original deed with your important documents. Let your beneficiary or a trusted person know where to find it.

New Mexico law provides a statutory form for TODDs (Section 45-6-416) that includes all required language. Many attorneys use this form as the starting point.

What If the Beneficiary Dies Before the Owner?

Under Section 45-6-413, if the beneficiary does not survive the property owner, the TODD has no effect. The property remains part of the owner's estate at death, meaning it will go through probate and be distributed according to the owner's will or New Mexico's intestacy laws.

To address this, you can name a contingent or backup beneficiary in your TODD. Many TODDs include language like "to John Doe, but if John Doe does not survive me, then to Jane Doe." This ensures the property still avoids probate if your first-choice beneficiary predeceases you. If you do not name a contingent beneficiary, you will need to update the TODD if circumstances change.

TODDs and New Mexico Community Property

New Mexico is a community property state, which means assets acquired during marriage are generally owned equally by both spouses. This has important implications for Transfer on Death Deeds:

Joint ownership: If you and your spouse own the home as community property with right of survivorship, both spouses must sign the TODD to transfer the property to a third-party beneficiary.
Spousal beneficiary: A TODD naming your spouse as the beneficiary is straightforward and common — both spouses can create TODDs naming each other to ensure the surviving spouse gets the home without probate.
Separate property: If you own property that is your separate property (acquired before marriage or through inheritance), you can create a TODD without your spouse's signature.

If you are married and considering a TODD, it is worth discussing with both your spouse and an attorney to make sure the deed is structured correctly under New Mexico community property law.

Frequently Asked Questions About TODDs in New Mexico

Does a TODD override my will in New Mexico?

No — a TODD does not override your will, and your will does not override a TODD. The two operate independently. The TODD controls the transfer of the specific real property it describes, regardless of what your will says. If your will says the house goes to one person but your TODD says it goes to someone else, the TODD beneficiary receives the property. This is why it is important to coordinate all of your estate planning documents so they work together consistently.

Can a TODD be used for commercial property in New Mexico?

Yes — New Mexico's URPTODA applies to all real property, which includes commercial property, vacant land, agricultural land, condominiums, and rental properties, as well as primary residences. If you own rental property in Albuquerque, an investment lot in Rio Rancho, or farmland in Placitas, you can execute a TODD for each property naming the beneficiary of your choice.

How much does it cost to record a TODD in Bernalillo County?

Recording fees in Bernalillo County are set by state statute and are typically $25 to $50 for the first page of a deed, plus a small fee for each additional page. The Bernalillo County Clerk's Office at One Civic Plaza NW in Albuquerque handles recordings. Fees in Sandoval County, Santa Fe County, and other New Mexico counties are similar. Combined with attorney fees (if you use one), the total cost for a TODD is usually under $500 — far less than the cost of probate.

Can I name multiple beneficiaries on a single TODD?

Yes — you can name multiple beneficiaries on a TODD. You can specify how they take title (for example, as joint tenants with right of survivorship or as tenants in common). However, when multiple beneficiaries inherit a property, they become co-owners, which can lead to complications down the road if they disagree about selling, maintaining, or using the property. If you are considering multiple beneficiaries, it may be worth discussing with an attorney whether a trust would better serve your goals by allowing more detailed instructions for how the property should be managed or sold.

Does a TODD affect property taxes or the annual tax bill?

During your lifetime, a TODD does not affect your property taxes at all. The property remains in your name, and you continue to pay taxes as usual. After your death, when the property transfers to the beneficiary, the beneficiary should notify the county assessor's office to update the ownership records. Under New Mexico law, the property will be reassessed for property tax purposes upon transfer — but the increase is capped at 3% per year under the state's valuation limitation rules, so the tax impact is generally manageable.

Do I need an attorney to create a TODD in New Mexico?

New Mexico law does not require an attorney to create a TODD, and standardized forms are available. However, having an attorney review your deed is strongly recommended. Small errors — an incomplete legal description, missing notarization, failure to record properly, or conflicting language with your will — can render the deed invalid and force the property into probate anyway. An experienced New Mexico estate planning attorney can prepare a TODD for a modest fee and ensure it coordinates with your overall plan.

Related Resources

For more information on probate, estate planning, and inheriting property in New Mexico, explore these resources:

Probate vs. Trust Administration in New Mexico — A detailed comparison of the two pathways for transferring assets
Working with a Probate Attorney in New Mexico — How legal guidance protects your family's interests
How Long Does Probate Take in New Mexico? — A phase-by-phase timeline breakdown
What Happens to a House When the Owner Dies in New Mexico? — An overview of the options available to families
7 Common Mistakes to Avoid During Probate — Errors that delay the process and how to prevent them
Understanding Heirs' Property in New Mexico — What families need to know about clouded title
Tax Implications of Selling Inherited Real Estate in New Mexico — Understanding stepped-up basis and capital gains

By Nysha Lynn Livingston, Realtor at MORE Realty.

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Whether you are creating an estate plan for your own home in Albuquerque, Rio Rancho, Corrales, or Placitas — or navigating inherited property as a beneficiary — Nysha Lynn Livingston, ABR, AHWD, CBDA, CLE, CNHS, CRS, MCNE, and RCC, can connect you with trusted professionals and guide you through the real estate side of your plan.

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Transfer on Death Deeds in New Mexico