New Mexico: Transfer-on-Death Deed Requirements

New Mexico adopted the Uniform Real Property Transfer on Death Act, NMSA 1978
§§ 45-6-401 to 45-6-417, effective January 1, 2014. It lets an individual name one
or more beneficiaries for New Mexico real property while keeping full control during life.

How to sign it

The deed must contain the ordinary elements of a recordable deed: the grantor and grantee
names, transfer language, the property's legal description, the owner's signature, and an
acknowledgment. NMSA 1978 § 45-6-402(C) requires the acknowledgment to occur before a
notary public or another person authorized by law to take acknowledgments. The Act lists no
witness requirement.

New Mexico also sets a special capacity rule. Under § 45-6-408, the capacity needed to
make or revoke the deed is the same capacity required to make a will. The beneficiary does
not sign or accept during the owner's life; § 45-6-410 says notice, delivery, acceptance,
and consideration are unnecessary.

Recording requirement

Under NMSA 1978 § 45-6-409, the deed must state that the transfer occurs at death and
must be recorded before the transferor dies in the county clerk's public records where the
property is located. If land crosses county lines, the statutory form's instructions say to
record in each county.

New Mexico sets no separate deadline measured from notarization. The decisive deadline is
death: the Act's optional form says, "This form must be recorded before your death or it will
not be effective."

Revoking it

The deed remains revocable even if it says otherwise. NMSA 1978 § 45-6-411 allows three
recorded methods:

• a later TOD deed that revokes the earlier deed expressly or by inconsistency;
• an express instrument of revocation; or
• an inter vivos deed that expressly revokes the TOD deed.

The revoking instrument must be acknowledged after the original deed and recorded before
death in the county where the original deed is recorded. Marking up, tearing, or destroying
the recorded deed does not revoke it. Nor does a will: the Act's statutory instructions say,
"You may not revoke the TOD deed by will." If joint owners made the deed, all living joint
owners must revoke it together as to the joint deed.

Eligible property and joint owners

The transferor must be an individual, and the property must be an interest in real
property located in New Mexico that can transfer at death. Those definitions appear in
NMSA 1978 § 45-6-402(F), (H).

A TOD deed cannot override an existing right of survivorship. Under § 45-6-413(C), if
another joint owner survives, the property belongs to the surviving joint owner or owners.
The TOD deed becomes effective only when the transferor is the last surviving joint owner.

Beneficiary survival and what passes

The default rules in NMSA 1978 § 45-6-413 are direct:

• the beneficiary must survive the transferor;
• a beneficiary's interest lapses if the beneficiary does not survive;
• multiple beneficiaries receive equal, undivided shares with no right of survivorship; and
• a lapsed co-beneficiary's share passes proportionately to the surviving co-beneficiaries.

The deed may provide different terms where the statute allows. The beneficiary takes subject
to the recorded mortgages, liens, easements, contracts, and other recorded interests on the
property at death, and receives no covenant or warranty of title.

Creditor and Medicaid reach

During life, NMSA 1978 § 45-6-412 says the deed does not affect any secured, unsecured,
or future creditor of the transferor and creates no beneficiary interest. The owner can still
sell, mortgage, or otherwise encumber the property.

After death, the transfer does not necessarily escape estate debts. NMSA 1978 § 45-6-415
points to § 45-6-102: when the probate estate cannot pay allowed claims and statutory
allowances for a spouse or children, a nonprobate transferee may be liable to the probate
estate, capped at the value received.

For Medicaid specifically, current NMSA 1978 § 27-2A-3(B) defines the recovery "estate"
as property subject to probate or administration under the Uniform Probate Code. A properly
recorded TOD deed passes outside probate, so the property itself is outside that Medicaid
estate definition. But the separate nonprobate-transferee rule can still require a TOD
beneficiary to contribute for an allowed claim against an insufficient probate estate. The
result therefore depends on whether a claim was allowed and what remains in the probate
estate, not merely on the deed's label.

What trips people up

• Notarizing without recording is not enough. The deed has no effect unless it reaches
  the county clerk's records before death.
• A will does not revoke the recorded deed. Use one of § 45-6-411's recorded methods.
• Survivorship ownership comes first. A surviving joint owner defeats the TOD transfer
  until the transferor is the last joint owner.
• Probate avoidance is not complete debt protection. Sections 45-6-415 and 45-6-102 can
  make the beneficiary contribute when the probate estate is insufficient.

Common questions

Do I need witnesses? No. The Act requires the owner's signature and acknowledgment
before a notary or other authorized officer, but it adds no witness requirement.

Does the beneficiary have to accept the deed now? No. Section 45-6-410 says notice,
delivery, and acceptance during the owner's life are not required.

What happens if one of several beneficiaries dies first? Unless the deed validly changes
the result, that share lapses and passes proportionately to the surviving co-beneficiaries
under § 45-6-413(A)(4).

Can the beneficiary inherit free of the mortgage? No. Section 45-6-413(B) makes the
beneficiary take subject to the recorded mortgage, liens, and other recorded interests.

Statutes and sources

• NMSA 1978 §§ 45-6-401 to 45-6-417 (Uniform Real Property Transfer on Death Act) — https://www.nmlegis.gov/sessions/13%20Regular/final/SB0107.pdf (accessed 2026-07-11)
• NMSA 1978 § 45-6-102 (nonprobate-transferee liability for allowed claims and allowances) — https://www.nmlegis.gov/Sessions/05%20Regular/final/HB0829.pdf (accessed 2026-07-11)
• NMSA 1978 § 27-2A-3(B) (Medicaid recovery estate means probate/administration property) — https://www.nmlegis.gov/sessions/24%20Regular/final/SB0014.PDF (accessed 2026-07-11)