Estate Planning 101

Adding a House to a Trust in New Mexico

In this blog post, we'll explore the ins and outs of adding a house to a trust in New Mexico. We'll delve into the benefits and drawbacks, discuss the costs involved, and provide a clear, step-by-step guide on how to navigate the process. We'll also address key topics such as estate taxes, selling a house in a trust, dealing with mortgages, refinancing, and transferring out of a trust.
April 10, 2024

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Estate planning is a crucial part of securing your family's future, and funding a trust is a significant part of this process. One of the assets you might consider adding to your trust is your house. This decision can potentially save your loved ones from the time-consuming and costly probate process. However, the process can seem daunting without proper guidance. In New Mexico, the laws surrounding trusts and estate planning are specific, and understanding them is key to making the right decision.

Benefits and Drawbacks of Adding a House to a Trust in New Mexico

When considering the decision to add your house to a trust in New Mexico, it's important to weigh both the advantages and potential disadvantages.

Benefits:

  1. Avoiding Probate: The most significant benefit of placing your house in a trust is avoiding probate. Probate is a legal process to settle an estate after someone's death, which can be time-consuming and expensive. By placing your house in a trust, it can pass directly to your beneficiaries upon your demise, bypassing the probate process.
  2. Privacy: Unlike a will that becomes a public document after your death, a trust remains private, thereby keeping the details of your estate away from public scrutiny.
  3. Flexibility and Control: Living trusts, in particular, offer a high level of control and flexibility. You can specify the terms of the trust, and as the trustee, you maintain control over the property during your lifetime. You can also change or revoke the trust at any time.

Drawbacks:

  1. Upfront Costs: Setting up a trust can be more expensive upfront than creating a will. This is because trusts are more complex legal documents and may require more legal assistance to establish.
  2. Maintenance: Trusts require ongoing management. This could mean additional time and costs, particularly if you have to hire a professional to manage the trust.
  3. Complexity: Trusts are more complex than wills. They may require more effort to set up and manage, and you'll need to transfer the title of your house to the trust after it's set up.

While putting your property in a trust can provide significant benefits, it may not be the best choice for everyone. In some cases, other arrangements such as setting up an LLC might be more beneficial.

The Process of Adding a House to a Trust in New Mexico

Adding a house to a trust in New Mexico involves several steps by the trustee, which are crucial to follow accurately to ensure a smooth process.

  1. Create a Trust: The first step is to create a trust document. This document outlines the terms of the trust, including beneficiaries and what happens to the property upon your death. You can create a trust using an online estate planning service or by working with an attorney.
  2. Property Appraisal: Before transferring your property into a trust, it may be beneficial to have it appraised to determine its current market value.
  3. Title Transfer: The next step involves transferring the title of your house to the trust. This is done by drafting a new deed with the name of the trust as the grantee. In New Mexico, the deed must be signed in the presence of a notary public.
  4. Record the Deed: After the deed is signed and notarized, it should be recorded with the county clerk's office in the county where the property is located.
  5. Notify Your Mortgage Lender and Insurance Company: Finally, notify your mortgage lender and insurance company about the change in ownership.

Costs of Adding a House to a Trust in New Mexico

The costs involved in adding a house to a trust in New Mexico can vary based on several factors, including the complexity of the trust, the value of the property, and the trustee fees or attorney's fees if you choose to hire one.

  1. Legal Fees: The cost of setting up a trust can range anywhere from a few hundred to a few thousand dollars, depending on whether you use an online service, a document preparation service, or hire an attorney to draft the trust. If you opt for an attorney, you can expect to pay an hourly rate, which can range from $200 to $500 per hour.
  2. Property Appraisal Fees: To determine the current market value of your home, you may need to hire a professional appraiser. The cost of a home appraisal in New Mexico typically ranges between $300 and $400, but it can be higher for larger or more complex properties.
  3. Deed Preparation and Recording Fees: There will be a charge to prepare and record the new deed. Deed preparation costs can range from $100 to $250, and recording fees in New Mexico are typically around $25 for the first page of the deed, with an additional fee for each additional page.
  4. Mortgage and Insurance Considerations: If your house has a mortgage, you'll need to notify your lender that you're transferring the property to a trust. Depending on the lender, there may be a fee associated with this. Additionally, you'll need to inform your homeowner's insurance company about the transfer. Although this shouldn't result in additional costs, it's essential to ensure your property remains properly insured.

Estate Taxes in New Mexico

When it comes to taxes, New Mexico is one of the states that does not impose its own estate or inheritance tax. This means, regardless of the size of your estate, you won't have to worry about the state taking a portion of it upon your death.

However, it's important to note that while New Mexico may not impose these taxes, the federal government does. The federal estate tax applies to estates exceeding a certain value, which for 2024, is $13.61 million for individuals and $27.22 million for married couples.

Transferring your house to a trust does not exempt it from federal estate taxes. The property will still be considered part of your taxable estate. However, certain types of trusts, such as an irrevocable trust, can help reduce or even eliminate federal estate tax liability.

Selling a House in a Trust in New Mexico

Selling a house in a trust is entirely possible and fairly straightforward, but the process can vary depending on the type of trust you have.

If the trust is a revocable living trust, and you're the trustee, you can sell the property just as you would if the house were not in a trust – by listing it, finding a buyer, and closing the sale. The proceeds from the sale would then go into the trust.

However, if you're not the trustee, or if the trust is irrevocable, things can be a little more complex. In this case, the trustee does have the power to sell the property, but they must always act in the best interests of the beneficiaries. The trustee would carry out the sale process and the sale proceeds would go into the trust for distribution according to the terms set out in the trust document.

It's also important to note that selling a house from a trust might have tax implications. For example, in New Mexico, the sale of a house is generally subject to the state's capital gains tax, unless the property is the seller's primary residence.

Adding a House with a Mortgage to a Trust in New Mexico

If your house is still under a mortgage, you might wonder how this affects the process of adding it to a trust. The good news is that in most cases, you can still transfer a mortgaged house into a trust.

In New Mexico, as in many other states, lenders cannot call in loans or raise interest rates when a mortgaged property is transferred into a revocable living trust – this is protected under the Garn-St. Germain Depository Institutions Act of 1982. This means you can continue to live in the property and make your mortgage payments as usual, but the property is now part of the trust.

However, it's crucial to inform your mortgage lender about the transfer. Failure to do so could potentially lead to complications down the line. Some lenders might request a copy of the trust agreement to verify that it is, indeed, a revocable trust and that you are the trustee and beneficiary.

On the other hand, transferring a mortgaged property into an irrevocable trust can be more complex and may require the lender's approval. This is because the transfer could be viewed as a sale, which might trigger the due-on-sale clause in the mortgage agreement.

Refinancing a House in a Trust in New Mexico

Refinancing a property held in a trust can be a bit more intricate than a standard refinance. However, it's certainly not impossible and can be done with proper guidance.

Here's the issue: Most lenders want to deal directly with the property owner. When a home is in a trust, the trust owns the property, and this can complicate the refinancing process. Lenders might be hesitant because of the perceived risk and the additional paperwork involved.

However, this doesn't mean you can't refinance. Many homeowners with properties in a trust successfully refinance their homes. They typically have to temporarily remove the property from the trust, refinance the home, and then put it back into the trust.

During this process, it's crucial to work with a lender experienced in dealing with trusts. They can guide you through the necessary steps and help ensure the trust's integrity remains intact.

In New Mexico, it's also paramount to inform your title insurance company about the refinance and ensure your title insurance remains valid during the process.

Transferring a House out of a Trust in New Mexico

There may come a time when you wish to remove your house from a trust. The process for doing so will depend on the type of trust you have.

If your house is in a revocable trust, the process is generally straightforward. As the trustee, you have the authority to transfer the property out of the trust. This involves preparing a new deed that transfers the property from the trust to your personal name or to a new owner. The deed must be signed, notarized, and then recorded with the county clerk's office.

However, if your house is in an irrevocable trust, removing it can be more complex. This type of trust cannot be altered without the consent of the beneficiaries. Therefore, transferring a property out of this type of trust typically requires agreement from all parties involved and may require court approval.

It's crucial to understand that transferring a property out of a trust can have tax implications and may affect your estate planning strategy.