Understanding what to list in a probate inventory in New Mexico

Detailed Answer

This article explains, in plain language, how New Mexico probate generally treats assets that pass automatically to a survivor (assets held with a right of survivorship), and whether those assets normally belong on a court inventory. This is an educational overview and not legal advice.

What are “right of survivorship” assets? These are assets titled so that ownership automatically transfers to the surviving co‑owner when one owner dies. Common examples are joint bank accounts titled “John Doe and Jane Doe, jointly with right of survivorship,” joint tenancy real estate, and some transfer‑on‑death or survivorship deed arrangements. Because ownership passes by operation of title, these assets generally do not become part of the decedent’s probate estate.

General rule under New Mexico practice: Assets that pass automatically to a surviving joint owner by right of survivorship usually pass outside probate and therefore are not usually considered part of the probate estate that the personal representative must administer. In other words, if title already names a surviving person who takes by survivorship, the asset typically does not need to be liquidated or administered through probate.

Does that mean you never list survivorship assets on the probate inventory? Not necessarily. Most of the time you will not include survivorship assets as estate property on the court inventory because they are not estate property. However, there are three important caveats:

• Local court forms or judges may ask for disclosure: Some probate inventories or accountings ask the personal representative to identify assets the decedent owned or controlled at death, including assets that passed outside probate. That is for transparency and to show the court you identified potential estate resources and creditor notice obligations. Always check the specific inventory or form required by the New Mexico probate court where the estate is opened.
• Creditor or family claims: Even if an asset passes by survivorship, creditors sometimes challenge transfers as fraudulent (for example, if the decedent transferred property into joint names shortly before death to avoid creditors). If that issue arises, the court may look at survivorship assets. Listing non‑probate assets in an inventory or disclosure can reduce surprises and help the personal representative show they fulfilled duties.
• Mixed or unclear title: If ownership is not clearly survivorship (for example, an account is joint but the bank’s records are ambiguous, or a deed is not properly stamped as survivorship), you should investigate and possibly disclose the item on the inventory until title is clear.

Practical examples:

• If a decedent had a bank account titled solely in their name, it is probate property and must be listed on the inventory.
• If a decedent had a joint account with their adult child that was properly titled as “joint with right of survivorship,” the bank balance usually moves directly to the surviving joint owner and generally does not belong on the probate inventory as estate property. You should, however, keep documentation showing the title and the bank’s treatment of the account.
• If real property was held as joint tenants with right of survivorship, that property usually passes outside probate to the surviving joint tenant and is not an asset of the probate estate—unless there is reason to question the survivorship claim.

What a personal representative should do:

• Carefully review the probate inventory form and local court rules. If the form asks for non‑probate assets or assets the decedent owned or controlled at death, provide the requested information.
• Gather supporting documents: account statements showing joint titling, deeds, beneficiary designations, the decedent’s will (if any), and death certificate copies.
• When in doubt, disclose the item as a non‑probate asset on a cover letter or in the inventory notes, stating that title shows survivorship. That creates a clear record.
• Keep records of communications with banks and title companies showing how the asset was handled after death (e.g., bank paid the joint owner after seeing the death certificate).
• If creditors or heirs dispute the survivorship claim, consider consulting a probate attorney promptly.

Where to check New Mexico resources

New Mexico Courts provides probate self‑help materials and information about estate administration and inventories; check the probate pages for forms and instructions for the district court where the estate is filed: https://nmcourts.gov/self-help/probate/. For statutes and the Uniform Probate Code as enacted in New Mexico, consult the New Mexico Legislature’s statutes and search for the Uniform Probate Code provisions.

When to talk to a lawyer

Consider consulting a probate lawyer in New Mexico if any of these are true:

• There is uncertainty about how an asset is titled.
• Heirs or creditors dispute ownership of a survivorship asset.
• You are unsure whether a disclosure on the inventory is required by the local court.
• The estate is complex or you are the personal representative and want to avoid later personal liability for mistakes.

Quick summary: Generally you do not include assets that already passed by right of survivorship as probate estate property on the inventory because they passed outside probate. But check the court’s inventory form and local rules — some require disclosure of non‑probate assets — and disclose unclear items to avoid later disputes. Keep documentation that shows how title passed.

Disclaimer: This article is informational only and does not provide legal advice. For guidance about a specific situation, consult a licensed New Mexico probate attorney.

Helpful Hints

• Confirm how the asset is titled right away (bank statements, deed language, beneficiary forms).
• Keep copies of the decedent’s death certificate and any correspondence where a bank or title company confirmed transfer to a survivor.
• When filing an inventory, read the specific inventory form and local rules — some New Mexico counties ask you to list non‑probate assets for completeness.
• If you list a survivorship asset for transparency, clearly label it as a non‑probate item that passed outside probate.
• If you worry about creditor claims or transfers made shortly before death, seek legal advice promptly.