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Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102349
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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My husband was on the deed to property in New Mexico. When

Customer Question

My husband was on the deed to property in New Mexico. When he died there was no will or trust. The deeds to the property were held by my sister, brothers and their wives, me and my husband. One brother and my husband are deceased. I have opted out of the property and thought I could just sign a release. The attorney in NM sent me a letter stating the following:Because Gary passed away without a will and the Warrant Deed did not have the designation (JTWROS) Joint Tenants with Rights of Survivorship, you need to be appointed personal representative for his interest in the property. After you have been appointed personal representative you will be authorized to sign the plat.There may be some other approach to this. However, neither Matt nor I know the laws in California.The Warranty Deed is in both my husband and my names.Don't know where to
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry for your loss. What exactly are you seeking to do here - do you not want to be the Personal Representative? Or, something else?

Customer: replied 1 year ago.
I no longer want any portion of the property. It has been a head ache for many years and costly attorney fees. I want to sign a release of the property to my brother, sister and sister-in-law. However, the attorneys in NM state that since my husband did not leave a will, trust or the designation Joint Tenants with Rights of Survivorship on the Warranty Deed that I need to be appointed personal representative for his interests in the property. What must I do to be appointed personal representative for his interest in the property. I want to be able to get rid of the property legally.
Expert:  Ely replied 1 year ago.

Thank you for your reply.

When someone passes away, then their estate has to be distributed. The problem is that without probate - with assets such as titled property or bank accounts (those that do not have a pay on death clause) - this is hard to do. This is because you cannot switch over the assets without an order from the probate court, and simply a Certificate of Death will not do. A Certificate of Death simply states that someone has passed on, but does not give you the right to really do anything in the deceased's name.

So one files probate. Once probate is filed, the Executor of the estate gets something called a Letter of Testament/Administration (hereinafter "Letter"). This Letter will allow the Executor to switch over the assets from the deceased individual to whoever will own the property. It is like a "Power of Attorney," but from the Court. Without that Letter, there is no way to transfer titled property and switch the assets into the beneficiaries' names.

Now, the attorney is assuming you wish to be the Executor (Personal Representative) of the estate. After all, he was your husband. However some surviving spouses do not wish to be the Executor and you can simply let the attorney know. They will then find someone else.

As for the property - all you have to do is to sign a deed over to whomever will inherit it OR the estate. Whoever is the Personal Representative (once you bow out) should send you the paperwork to do this.

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