Albuquerque Attested Will Lawyer

An attested will refers to a will that has been properly witnessed and signed by all parties. In Albuquerque, for a will to be valid, it must be signed by the will’s creator (known as the testator) in front of at least two witnesses.

The witnesses must then sign the will in one another’s presence and in the presence of the testator.

Any will admitted into probate in Albuquerque or elsewhere in the state must have been executed in this manner. The only exception is if the testator resided in (or otherwise has a legitimate domiciling claim to) another state, country, or territory, and they executed a will that is considered valid in that jurisdiction. 

To ensure that your will can be admitted in court and used as you intend, refer to an Albuquerque attested will lawyer. They can help you prepare your will, amend an existing will, or otherwise make estate plans that are capable of fulfilling your wishes after you die.

Schedule a no-obligation consultation with the experienced estate planning team at New Mexico Financial & Estate Planning Attorneys when you call 505-503-1637 or contact us online today.

Securing Your Legacy With an Albuquerque Attested Will Attorney

A will is a critical document that ensures that everything you leave behind (i.e., your estate) goes exactly to the people you want it to. Proper attestation of your will is required for the will to be recognized by probate and usable by your estate’s personal representative (aka your executor).

If you do not have a properly attested will, the court is forced to look to the next most recent valid will you have created. This could be outdated and fail to account for many of your most prized possessions.

Or, if you don’t have an attested will at all, then your estate is considered intestate. The personal representative of your estate is then forced to distribute your property according to the laws of the state, rather than according to your wishes.

Avoiding intestacy or the unwanted use of an older will requires you to follow all of the needed steps for a valid will in Albuquerque. An Albuquerque attested will lawyer can help you with performing these steps.

They may also recommend further steps that are not required but can be beneficial, such as having your will notarized. In addition, an Albuquerque attested will attorney can assist you with other essential estate planning tasks, such as:

• Taking an inventory of your estate, with an emphasis on the most valuable holdings as well as assets considered precious to the family
• Reviewing the language of any pre-existing will while gathering your input on any wanted changes
• Lining up the witnessing of a new (or first) version of an attested will, along with notarization and any other steps to reduce the risk of the will encountering issues in probate
• Fully and clearly revoking any earlier versions of a will
• Helping you anticipate and form a plan to address any challenges, concerns, or unwanted scenarios through your will and other estate planning tasks
• Incorporating your attested will with the other elements of your estate plan, such as a trust, living will, powers of attorney, etc.

When you come to New Mexico Financial & Estate Planning Attorneys, we can help you approach your attested will and overall estate plan from a comprehensive perspective. With the assistance of an experienced Albuquerque attested will attorney, you can go through every major priority while making contingency plans for possible challenges. 

We always make sure to listen closely to your specific goals and adjust your attested will and other estate plans to maximize the chances that your loved ones are going to feel cared for and appreciated, thanks to the preparations you have made.

What Is Required for an Albuquerque Attested Will to Be Valid?

For a will to be admitted into probate in Albuquerque — or anywhere else in the state (per NM Stat § 45-2-502) — it has to be:

• “In writing,” meaning it is a handwritten or typed and printed copy (not an oral will or an electronic will)
• Signed by the testator (or by someone else at their direction and in their presence) in front of at least two witnesses
• Signed by at least two witnesses, who watched the testator sign the document and who then must sign the document in one another’s presence and in the presence of the testator

The act of signing the will in front of witnesses and having the witnesses sign the will themselves is referred to as “executing” the will. The act of execution attests to the will’s intended purpose of disposing of the testator’s estate.

The signing of the testator acknowledges their consent to using the document for this purpose. Having witnesses ensures that the testator’s signature is valid.

Including an Attestation Clause and Notarization

Even if a properly attested and executed will is entered into probate, there is a chance that the court could request that the estate’s personal representative produce the witnesses to the signing of the will. This is referred to as “proving” the will, since it acts as an extra confirmation and attestation of the will’s validity.

Alternatively, a testator can make a will “self-proving,” which means that the two witnesses do not have to be contacted in order for the will to be considered valid.

To make the will self-proving, the testator can sign a statement identical (or substantially similar to) the following (per NM Stat § 45-2-504):

“I, ________, the testator, swear or affirm under penalty of perjury on this _______ day of ________, that I request ________ and ________ to act as witnesses to my will; that I declare to them and the undersigned authority that this document is my will; that I sign this will in the presence of both witnesses; that they sign the will as witnesses in my presence and in the presence of each other; that the will was read by me (or read and explained to me) after being prepared and before I sign it; that it clearly and accurately expresses my wishes; that I sign it willingly (or willingly directed another to sign for me); that I make and sign the will as my free and voluntary act for the purposes expressed in the will; that I am eighteen years of age or older; that I am mentally capable of disposing of my estate by will; and that I am not acting under duress, menace, fraud or undue influence of any person.

Witnesses then sign their own statement:

We, __________ and __________, the witnesses, do hereby swear or affirm under penalty of perjury on this ___________ day of ___________________ to the undersigned authority that the testator, __________________, declares that the attached document is his or her will; that the testator signs it willingly (or willingly directs another to sign for him or her); that the testator signs it in the presence of both of us and requests both of us to sign as witnesses; that each of us, in the presence of the testator and in the presence of each other, signs this will as witness to the testator’s signing; that so far as we can determine, the testator is eighteen years of age or older; that the testator is not acting under duress, menace, fraud or undue influence of any person; and that the testator, in our opinion, is mentally capable of disposing of his or her estate by will.

The signing of these statements must be witnessed by “an officer authorized to administer oaths under the laws of the state” — AKA, a notary. The notary then signs an affidavit and attaches their seal to the document.

The notarization and attestation affidavit process can also take place after the will has been executed, provided that each party amends their statement appropriately.

Also worth noting: if the testator and/or witnesses failed to execute the will properly, their signing of the attestation affidavit can serve as the actual execution of the will.

Why Do Witnesses Have to Be Contacted for an Albuquerque Attested Will to Enter Probate?

The need to contact witnesses to prove a will stems from a much older legal tradition. In the past, witnesses and their attestation clauses could have served as the only physical evidence of a transaction that took place.

The transaction may have taken place orally, concluding in a “handshake” deal with no official record of the exact details of the transaction. Witnesses were used to attest that the deal took place as stated by both parties.

Since the advent of typewriters (and, later, computers), it became much easier to simply record the exact details of the transaction on paper. Witnesses were then only needed to assure that the signatures of all parties on the contract were genuine.

This tradition of producing witnesses continues, even though the documents have essentially become the transaction itself, rather than a mere summary of the transaction that took place.

Do All Wills Require an Attestation Clause?

An attestation clause explicitly lays out that the testator understands they are signing a will and that they are of sound mind and not under the influence of another party nor being defrauded by another party.

Attestation clauses are not required for a will to be valid, but they help affirm several of the most critical requirements for the will to be valid. These clauses are also used more generally in business transactions and other contracts, serving as “the place in the agreement where the parties sign to indicate their consent to the provisions of the agreement.”

Other Requirements for a Valid Attested Will in Albuquerque

In addition to the aforementioned state law (NM Stat § 45-2-502), there are other requirements that need to be met for a will to be considered valid:

• The testator must be 18 years old or older or an emancipated minor
• The testator must have the mental capacity to understand that they are signing a will and that the will disposes of their property in a particular way
• The testator should not be under duress or subject to the pressures of undue influence when drafting a will or signing it
• The testator should not have been given information that is false, fraudulent, misleading, or otherwise contrary to what is indicated in the text of the will; for example, the testator cannot be told they “have a long-lost son” who should split their estate equally with other siblings if no such estranged child actually exists
• The witnesses must be age 18 or older and have the capacity to understand that they are witnessing the signing of an official document by someone (the witnesses do not have to know that the document is a will)
• The witnesses do not have to know anything about the contents of the will or any other context, such as if this is the third draft of a will that invalidates earlier drafts

Do the Witnesses to an Albuquerque Attested Will’s Signing Need to Be Non-Interested Parties?

A “non-interested party” to a will generally refers to someone who is not named in the will as a beneficiary, who is not designated to serve as executor, who is not directly connected by blood or by business to the testator, and who is otherwise not affected by the outcome of the will’s instructions.

In New Mexico, there is no requirement for a witness to be a non-interested party. However, it can be highly advisable for this to be the case. A non-interested party is seen as a more reliable and trustworthy witness compared to someone who might be motivated to ensure that a particular draft of a will is entered into probate.

Talk to an attorney at an Albuquerque attested will law firm to learn more about who could be the best individuals to select as witnesses to the signing of a will.

Get Help Preparing for Your Future With an Albuquerque Attested Will Law Firm

Drafting an attested will is a key component of your estate plan. Even if you don’t have much of an estate or your estate is mostly handled through things like transfer-on-death bank accounts, you should still create and properly execute a will.

Doing so reduces the risk of contests or having your estate become intestate, and it also acts as official confirmation of how you want your estate to be handled.

Learn more about how to create an attested will in Albuquerque when you call New Mexico Financial & Estate Planning Attorneys at 505-503-1637 or contact us online to schedule a no-obligation consultation and estate plan review.