Detailed Answer
This page explains what you can do in New Mexico if someone is using a deceased parent’s bank account to pay living expenses or a mortgage before a court has appointed a personal representative (administrator or executor). This is an explanation of common legal steps and rules under New Mexico law, not legal advice.
Who controls a decedent’s bank account?
There are three common possibilities for how a bank account is handled after death:
- Account owned solely in the decedent’s name: generally part of the probate estate and controlled by the court-appointed personal representative.
- Payable-on-death (POD) or transfer-on-death (TOD) designation: the named beneficiary gets the funds directly outside probate.
- Joint account with right of survivorship: the surviving joint owner usually becomes the owner automatically.
Which category applies is critical. If the account was titled solely in your parent’s name, a sibling who spends funds before appointment may be taking estate property without authority.
Immediate steps you can take
- Confirm account title and beneficiary status. Ask the bank (or request from whoever has access) for a copy of the account statement and title information. That shows whether the account was sole, joint, or POD/TOD.
- Gather documents. Get the death certificate, recent bank statements, mortgage statements, and any communications that show the sibling is using funds for the mortgage.
- Contact the bank. Banks often require a certified copy of the death certificate and a court-issued letter of appointment (letters testamentary or of administration) before they will allow someone to withdraw estate funds. Ask the bank what their requirements are and whether they can place an administrative hold while the probate process is started.
- Send a written demand. A polite but firm written demand to the sibling asking them to stop using estate funds and to preserve records can be useful both to try to resolve the issue and later to show you acted reasonably.
- File for appointment of a personal representative. Under New Mexico probate procedure you (or another interested person) can file a petition in district court to be appointed personal representative or to have the court appoint one. Once appointed, the personal representative has authority to manage estate assets and can demand an accounting and seek recovery of improperly spent funds. See New Mexico Courts’ probate information: https://www.nmcourts.gov/self-help/probate/
- Ask the court for emergency relief if assets are being dissipated. If a sibling is spending large sums or threatening to spend estate funds, you can ask the probate court for temporary or emergency relief such as a temporary restraining order, an injunction, or immediate appointment of a temporary administrator to protect the estate while the case proceeds.
Possible legal claims and remedies
- Conversion or unjust enrichment. If someone takes estate money without authority, beneficiaries or an appointed personal representative can seek return of funds and damages.
- Breach of fiduciary duty or accounting. If a person is acting as a de facto representative or later becomes the representative, the court can require an accounting and surcharge for improper uses.
- Temporary injunctive relief. If immediate harm is likely (e.g., mortgage not being paid but funds are available and being misused), the court can issue temporary orders to freeze assets or appoint a temporary administrator.
When a sibling’s access may be lawful
If the account was joint with the sibling or had a POD/TOD beneficiary naming them, the sibling generally has lawful access to the money outside probate. In that case, the funds are not estate property even if they are used to pay the mortgage; different remedies apply and are more limited.
Practical timeline and urgency
Act quickly. Banks will often freeze accounts temporarily when given notice of a death. If funds are being spent now, preserving evidence and either obtaining a court freeze or getting someone appointed quickly is important to prevent irreparable loss.
Where to look in New Mexico law and court resources
New Mexico handles probate matters through the district courts and has procedures for appointment of personal representatives, temporary administrators, and estate administration. For self-help information and forms, see the New Mexico Courts probate page: https://www.nmcourts.gov/self-help/probate/
For the authoritative statutory text on probate and estate administration search the New Mexico statutes at the state legislature site: https://www.nmlegis.gov/Laws_Statutes/Statutes_of_New_Mexico
When to call an attorney
Consider hiring an estate or probate attorney if:
- Substantial funds are at risk or already spent;
- There is a dispute about account title or beneficiary designations;
- You need emergency court orders (asset freeze, temporary administrator, injunction);
- You want help filing the probate petition and pursuing recovery of misused funds.
Even if you plan to start without an attorney, a brief consultation can help you understand immediate steps and the likely strength of any claims.
Short summary: If the account was solely in your parent’s name, a sibling who uses it before a court appointment may be taking estate property without authority. Act quickly: confirm account title, gather evidence, contact the bank, send a written demand, and file for appointment or emergency relief in the probate court. If the account was joint or POD/TOD, the sibling may have lawful access and remedies will differ.
Disclaimer: This is general information about New Mexico law and is not legal advice. For advice about a specific situation, consult a licensed New Mexico attorney.
Helpful Hints
- Find the death certificate immediately; banks require it to act.
- Ask the bank in writing what documentation they require to restrict withdrawals or to release funds.
- Keep copies of all correspondence and a timeline of withdrawals and payments involving the account.
- If you suspect theft, note the amounts, dates, and purpose (e.g., mortgage payment) to show how funds were used.
- If the account is joint or POD, request proof (account agreement or beneficiary designation) from the bank to confirm rights.
- Use certified mail or email with delivery receipt for important communications so you can prove they were sent and received.
- Act quickly to file a probate petition—delays can make recovery harder.
- Ask the court about emergency or temporary appointment procedures if funds are actively being dissipated.