Deciding Which Assets to List on a New Mexico Small Estate Affidavit

Disclaimer: This is educational information only and not legal advice. I am not a lawyer. For advice about your specific situation, contact a licensed New Mexico attorney or the probate court in the county where the decedent lived.

Detailed Answer — How to decide what to list, leave blank, or value at zero

A small estate affidavit is a sworn document used to collect certain assets of someone who died without a full probate administration. The rules and the form language control what you must list. New Mexico law and the affidavit form determine which property qualifies and how you must describe it, so first check the statute and the form instructions. The New Mexico Legislature and New Mexico Courts websites are good starting places: https://www.nmlegis.gov/ and https://nmcourts.gov/.

Step 1 — Read the affidavit form and statute instructions carefully

Different affidavits ask for different things. Some ask you to list all property of the decedent in the state up to a dollar limit. Others ask only for property that would otherwise be subject to probate. Follow the form’s directions. If the form asks for “probate assets,” you generally need to list assets owned solely in the decedent’s name. If it asks for “all assets,” you may need to disclose items that pass outside probate as well.

Step 2 — Know the basic ownership rules (probate vs non‑probate)

• Probate assets (usually list these): Property owned solely in the decedent’s name at death, including bank accounts titled only to the decedent, personal property, and real estate held in the decedent’s name without survivorship rights or trust ownership.
• Non‑probate assets (often do not need to be listed as probate assets): Property that passes automatically by operation of law or contract, such as accounts with a payable‑on‑death (POD) or transfer‑on‑death (TOD) beneficiary, life insurance or retirement benefits that name a beneficiary, property held in a valid living trust, and property owned jointly with right of survivorship (where the co‑owner immediately becomes owner).
• Mixed or unclear ownership: Accounts or property with ambiguous titles or beneficiary designations require extra care—if the ownership is not clearly non‑probate, many forms ask you to disclose and explain.

Step 3 — When to include an asset

Include an asset on the affidavit when any of the following apply:

• The asset was solely in the decedent’s name and the value falls within the small‑estate limit (see the statute/form).
• The affidavit form specifically asks you to list all assets, including those that pass outside probate.
• You are unsure whether the asset passes outside probate. When in doubt, disclose the asset and explain its title or beneficiary status. Transparency reduces the risk of later challenges.

Step 4 — When you can leave a field blank or put zero

• Do not put zero unless the asset truly had zero value at the date of death. A mistaken zero could be considered a false statement on a sworn document.
• Leave a field blank only if the form instructions permit blanks. If the form requires an answer, write “unknown” or provide your best reasonable estimate and explain in an attached note how you reached that number (e.g., bank statement balance on date of death).
• If an asset was entirely non‑probate and the form asks only for probate assets, you may leave it out. If the form asks for all assets, list it but mark the transfer method (e.g., POD — beneficiary named) rather than assigning probate value.

Step 5 — How to value an asset

• Use the asset’s date‑of‑death value. For bank accounts, use the balance on the date of death (bank statements). For vehicles, use a standard valuation guide (NADA/KBB) or the county’s valuation. For real estate, use a recent appraisal or county assessor value and note any mortgages or liens.
• If you don’t know an exact value, provide a reasonable estimate and state how you estimated it.
• For jointly held property, list the decedent’s share only (for example, 50% if the property was owned equally), and explain the joint title type.

Step 6 — What to say about beneficiary‑designated accounts and trust property

If an asset names a beneficiary (life insurance, retirement accounts, POD/TOD bank accounts) or is held in a trust, note the beneficiary or that the asset is trust property. Many small‑estate forms still ask you to list these items or to state that they are excluded because they pass outside probate. Include copies of beneficiary designation pages or trust excerpts if the form requests supporting documents.

Step 7 — Beware of penalties for false statements

The affidavit is typically signed under oath. A false or incomplete statement can expose the signer to civil liability and criminal penalties. If you are unsure about ownership, valuation, or whether to include an item, note the uncertainty and give the best available information rather than guessing or stating zero without basis.

When to get help

Get help if:

• The form’s instructions are unclear about what to list;
• You suspect there are significant assets or debts you cannot identify;
• There are disputes among heirs, multiple beneficiaries, or complex titles (business interests, deeds with unusual language); or
• You face bank or third‑party refusal to release assets after you submit the affidavit.

Contact the county probate court clerk or a licensed New Mexico attorney for guidance in these situations.

Helpful Hints

• Start by collecting the decedent’s last bank statements, investment statements, titles, insurance policies, and retirement account statements. Those documents show exact account numbers, balances at death, and beneficiaries.
• Check the county assessor and recorder online to see whether real property or vehicles were titled to the decedent alone.
• For every asset listed, keep one supporting document (statement, deed, title, beneficiary form) to attach or to show the entity asked to release the asset.
• If a bank or institution asks for the affidavit but also requests additional documentation, provide the affidavit plus the supporting documents they ask for (death certificate, ID, account statements).
• When listing joint accounts, state the type of joint ownership and whether the co‑owner was a spouse or unrelated person. That detail helps institutions decide how the account transfers.
• Use clear labels on any attachments: “Account 12345 — Balance on date of death X — source: bank statement dated …”
• Do not sign the affidavit before you complete the asset list and attach required documents. You will be swearing to the accuracy of the information you provide.
• Keep copies of the signed affidavit and all attachments. You may need them later if a third party questions the release of an asset.

Where to find forms and official guidance in New Mexico

For the specific affidavit form, instructions, and any statutory limits or procedures, check the county probate court’s website where the decedent lived and the New Mexico Courts site: https://nmcourts.gov/. For legislative text and to locate the applicable probate statutes, use the New Mexico Legislature site: https://www.nmlegis.gov/.

If you remain unsure after reviewing the form and available resources, consider contacting a licensed New Mexico attorney or the probate clerk in the decedent’s county for clarification.