New Mexico gift deed

What a gift deed does in New Mexico

A gift deed transfers property with no money changing hands, and it says so on its face. Stating the donative intent matters: it can support a transfer-tax exemption in states that tax transfers and it documents that the recipient paid nothing, which is exactly what a recorder, an assessor, and later the IRS will want to see. Mechanically it operates like a quitclaim. Immediate, and without title warranties.

A gift deed operates like a quitclaim deed but states that the transfer is a gift. We found no New Mexico state transfer tax to exempt it from, and a gift needs no Residential Property Transfer Declaration Affidavit (N.M. Stat. Ann. § 7-38-12.1(D)(17)). The City of Santa Fe has its own tax on the consideration above $1,029,000 of a residential transfer; we did not find whether it reaches a gift, so ask the City if the property is in Santa Fe.

The New Mexico law behind this deed

New Mexico has no section written specifically for gift deeds. The instrument runs on the general conveyancing and recording statutes below, which is why the requirements here look like those for any other deed in the state.

When New Mexico property owners use a gift deed

• Give a house or land to a child or grandchild
• Transfer property to a sibling or parent for no payment
• Record that a transfer is a gift, for tax and title records
• Make a charitable gift of real estate

What New Mexico requires on the deed

These are the execution and formatting rules county clerks enforce. Getting any of them wrong is the usual reason a deed comes back in the mail.

How to complete and record it in New Mexico

1. 1Find your current deedYou need the legal description from it, word for word. If you can't find your copy, the County Clerk can provide one, usually for a few dollars.
2. 2Identify everyone by full legal nameNames must match the current deed and government ID exactly, middle names included. A mismatch creates a gap in the chain of title that shows up years later at closing.
3. 3Complete the deedDeedly builds it with the wording, notary certificate, and 3-inch first-page margin used for New Mexico deeds.
4. 4Sign in front of a notaryBring photo ID. Wait to sign until you are in front of the notary: you have to appear before the notary anyway, and signing there leaves no question about who signed.
5. 5Record it with the County ClerkFile in the county where the property is located and pay the recording fee. Many offices in this state also accept e-recording, but usually only from approved submitters such as title companies. Keep the stamped receipt. It fixes your priority date.
6. 6Update insurance and tax recordsA change of ownership can affect your homeowner's policy, your homestead or senior exemption, and in some states the assessed value. Do this within a few weeks.

What it costs in New Mexico

We found no New Mexico state real estate transfer tax. The City of Santa Fe charges its own tax of 3% on the part of a residential price above $1,029,000, paid by the buyer, so outside Santa Fe the recording fee is normally your only cost.

Where to record it in New Mexico

New Mexico deeds are recorded with the County Clerk in the county where the property sits, not where you live. There are 33 counties in New Mexico.

Many New Mexico recording offices accept e-recording through vendors such as Simplifile, CSC, or ePN. E-recording is generally open only to approved submitters such as title companies, attorneys, and lenders, so if you prepared the deed yourself, plan to record in person or by mail. Some offices accept filings from the public through those vendors; your county's website will say.

Recording offices we cover in New Mexico: Bernalillo, Doña Ana, Santa Fe, Sandoval, San Juan, Valencia. See all New Mexico recording offices.

What a gift deed does NOT do

Being honest about the limits is more useful than a sales pitch. Every one of these catches somebody out.

• The recipient takes your original cost basis, not the current market value. A later sale can produce a large capital-gains bill that inheriting the property would have avoided.
• A gift over the annual exclusion requires you to file IRS Form 709, even if no tax is due.
• It is irrevocable once delivered and recorded. You can't take the property back if the relationship changes.
• Gifting a property within Medicaid's look-back period can create a penalty period for long-term-care eligibility.

Quirks of New Mexico law that catch people out

• New Mexico is a community property state. Both spouses must sign a deed of community real property, and of separate real property they own together. A deed signed by one spouse alone is void (N.M. Stat. Ann. § 40-3-13(A)).
• We found no New Mexico state real estate transfer tax, though no current state agency page says so in as many words. The City of Santa Fe has its own High-End Excise Tax, 3% of the consideration above $1,029,000 on residential property, paid by the purchaser (Santa Fe City Code § 18-18.5).
• New Mexico has no "community property with right of survivorship" title. A married couple who want the survivor to take the whole property take title as joint tenants. Joint tenancy property a married couple acquires is still presumed to be community property (N.M. Stat. Ann. § 40-3-8(B)), but it passes to the surviving spouse and cannot be left to anyone else by will (§ 45-2-807(A)).

How to hold title in New Mexico

When two or more people take title in New Mexico and the deed says nothing more, the law presumes a tenancy in common, which means no automatic survivorship. If you want the survivor to take the whole property, the words have to be on the deed. Forms of co-ownership available in New Mexico: joint tenancy with right of survivorship, tenancy in common, and community property.

New Mexico has no "community property with right of survivorship" title. Spouses may hold property as joint tenants, tenants in common or community property (N.M. Stat. Ann. § 40-3-2). Spouses who want the survivor to take the whole property take title as joint tenants.