Detailed Answer — How New Hampshire Probate Treats Assets That Passed by Right of Survivorship
Short answer: In New Hampshire, assets that pass automatically to your mother by right of survivorship (for example, joint bank accounts titled “A & B, with right of survivorship,” or property held as joint tenants with right of survivorship) generally transfer outside probate and do not become part of the decedent’s probate estate. You normally do not include those assets as part of the probate estate inventory used to identify, value, and distribute probate assets.
Why: Right of survivorship means ownership automatically shifts to the surviving joint owner when one owner dies. That transfer occurs by operation of law, not by the terms of a will or by intestate succession. Because the property never becomes property of the decedent’s probate estate, courts typically do not treat those assets as estate property subject to creditor claims or distribution by the personal representative.
Common examples of non‑probate transfers by survivorship:
- Bank or brokerage accounts titled jointly with right of survivorship or payable‑on‑death (POD) / transfer‑on‑death (TOD) designations;
- Real estate held as joint tenants with right of survivorship;
- Some jointly held vehicles or other titled property;
- Life insurance or retirement accounts with beneficiary designations (these are not “survivorship” in name but are non‑probate transfers).
When you must still pay attention to these assets
- Probate forms or local practice: Some probate courts ask personal representatives to list non‑probate assets on a schedule or to identify them on an initial filing. This is usually for informational or accounting purposes, not because those assets are part of the estate. Check the probate forms or ask the probate clerk whether they want a separate schedule of non‑probate assets.
- Creditor claims: Creditors generally cannot reach assets that pass automatically to a surviving joint owner, but if the probate estate has insufficient assets to pay creditors, creditors sometimes try to challenge transfers or claim the transfers were made to defeat creditors. If you suspect creditor issues, get legal advice promptly.
- Title disputes or improper joint titling: If the joint ownership was created shortly before death or the titling was inconsistent with intent (for example, the decedent did not intend to give survivorship rights), a probate court or other court might examine the transfer. Documentation of intent and timing can matter.
Practical steps to take in New Hampshire
- Review the probate court’s inventory instructions and forms. The New Hampshire probate court may provide guidance or a form for inventories and accountings; the court clerk can confirm whether to report non‑probate assets as a separate schedule. See the New Hampshire Judicial Branch probate pages for resources: https://www.courts.state.nh.us/probate/.
- Gather documentation showing how each asset is titled (account statements, deeds, vehicle titles, beneficiary forms) and the decedent’s death certificate.
- If you are acting as personal representative, prepare a clear inventory of probate assets and consider attaching a separate list of known non‑probate assets (with a note that they pass outside probate by survivorship or beneficiary designation). That makes your accounting transparent and may protect you later.
- If a creditor or interested person questions the transfer, or if the titling looks irregular (for example, joint title added shortly before death), contact a New Hampshire probate attorney to evaluate risk and next steps.
When you should consult an attorney
- If the amount involved is large or multiple parties dispute ownership.
- If there are creditor claims or complex tax questions.
- If the titling appears to have been changed just prior to death or under questionable circumstances.
Bottom line: You generally do not include assets that passed by right of survivorship to your mother in the probate inventory of the decedent’s probate estate in New Hampshire. Still, disclose non‑probate assets to the probate court if the court or local rules require it, and keep clear records showing why those assets passed outside probate.
Disclaimer: This article is for general informational purposes only and is not legal advice. It does not create an attorney‑client relationship. For advice tailored to your situation, contact a licensed New Hampshire attorney or the local probate clerk.
Helpful Hints
- Check account and deed wording: If an account or deed includes language like “with right of survivorship,” that usually means the asset passes automatically to the survivor.
- Bring original documents to the probate clerk: bank statements, deeds, vehicle titles, beneficiary forms, and the death certificate.
- Make a separate schedule of non‑probate assets: Label it clearly and attach it to the inventory if you file one. Note the reason each item is non‑probate (e.g., “joint tenancy with right of survivorship,” “POD beneficiary”).
- Ask the probate clerk: Court staff can often tell you required inventory items and whether non‑probate assets must be listed for informational purposes.
- Keep copies and a timeline: If joint titling was recent, document when and why the title changed to reduce later disputes.
- When in doubt, get an attorney: Small errors on inventories or misclassifying assets can cause delays or personal liability for a personal representative.
- If creditors are involved, act quickly: Non‑probate treatment is strong, but challenges can arise—legal counsel can help protect the survivor’s rights.