Legal Question in Real Estate Law in New Mexico

Re: real estate deeds wording

New Mexico is indeed a community property state. However, its laws and practices will differ from California's in certain particulars - for example, they use warranty deeds; here, we call them grant deeds. The issue here may turn out to be whether New Mexico has a presumption that property co-owned by a married couple is community property unless otherwise clearly stated in the deed of record. There may also be an issue as to whether a spouse may leave part or all of his interest in community property to someone other than the surviving spouse. It is these two issues that are (apparently) bothering the title company.

My guess is that your New Mexico attorney (look for someone in the county where the property is situated) will advise you that the easiest approach is to request the two quitclaim deeds. Asking for them won't worsen your legal position, and might speed things along at little cost. If one or the other refuses, you're probably stuck with a suit to quiet title (or a related cause of action) under New Mexico law.

Another issue that looms is whether there was any kind of a probate proceeding in New Mexico (or California, for that matter) upon your husband's death. It's possible that such a proceeding, if held, would have resolved the title issues.

Re: real estate deeds wording

A deed in the name of Joe Jones and Mary Jones,husband and wife, is not a joint tenancy with right of survivorship in NM. It is a tenancy which will require either (a) an informal probate, or (b) Quit Claim deeds from all other heirs. The Affidavit you describe will not do it. The deed you describe will deliver 50% of the property to the wife (community property), and 50% divided among the children.