Ask the Probate Judge—Three Short Questions

Q: I read the article on the medical power of attorney in the Albuquerque Journal and have a question. I moved to New Mexico from Wisconsin. I have a health care power of attorney from Wisconsin. Will this be accepted in New Mexico? L.H.S., Albuquerque

A: New Mexico's law on health care powers of attorney states, "Any advance directive, durable power of attorney for health care decisions, living will, [or] right-to-die statement…that is executed in another state or jurisdiction in compliance with the laws of that state or jurisdiction shall be deemed valid and enforceable in this state to the same extent as if it were properly made in this state." Assuming your Wisconsin power of attorney was created properly, it should be honored here.

Q: I recently read an article in which a husband and wife questioned whether the "joint tenants" clause in their warranty deed must be stated as "joint tenancy with right of survivorship" as opposed to just having the words "joint tenants." I checked my warranty deed (for property in New Mexico) and it just has "joint tenants." Is this a problem in New Mexico? A.B.

A: I checked with a reputable real estate attorney, and he assures me that "joint tenants" is the equivalent of "joint tenants with right of survivorship" on a deed to real property in New Mexico. You might also see "JTTEN" or "JTWROS" on a deed. All mean the same.

Q: My grandfather died recently in Roswell, New Mexico. I am the executor of the estate. I also had full power-of-attorney (medical and financial). His only asset of value was the house. We have an offer from someone to buy the house; however, the title company told the buyers that I need to have the house transferred to an "estate" by probating the will before I can sell it. Is this correct considering I have full power-of-attorney? Does a power-of-attorney expire at death? M.M., Houston, TX

A: Powers of attorney expire either when revoked by a competent individual or when the individual dies. Death ends all powers of attorney. It is improper for anyone to use a power of attorney for a person who has died.

Give notice of your grandfather's death in writing to any institution that was relying on the power of attorney. Once the bank or other entity knows that the principal has died, it can no longer honor a power of attorney.

If the house is titled in your grandfather's sole name, you do need a court probate proceeding to obtain legal authority to sell the house to the new owner. Start the probate proceeding by filing an application, original will, and additional paperwork. The court should appoint you personal representative of your grandfather's estate and issue Letters Testamentary. These Letters give you legal authority to pay creditors, file taxes, sell the house, and distribute the estate.