Albuquerque Deathbed Will Lawyer

Many times, an individual in failing health feels desperate to create a will or make major changes to a pre-existing will. Their family members and other loved ones may also share this sense of urgency.

Creating a written will prior to someone’s likely death — sometimes called a “deathbed will” — can be legal in Albuquerque, but those involved have to ensure that the testator has enough mental capacity to understand what they are doing. They should also be wary of other reasons that a deathbed will might be contested.

Contacting an Albuquerque deathbed will lawyer can ensure that your family is aware of all the requirements for a valid will in the state. An attorney can also help you perform due diligence to reduce weaknesses that might allow someone to contest the deathbed will.

If you have questions about creating a deathbed will in Albuquerque or want to get started on the process right away, reach out to New Mexico Financial Law at 505-503-1637 or contact us online. We will schedule you for a confidential consultation, with no-obligation to use our services further.

Using our experienced guidance, your family can find the best path forward, even in the waning days of someone’s life.

How Can an Albuquerque Deathbed Will Attorney Help Me?

Working with an Albuquerque deathbed will attorney can help you understand what is needed for the will to be recognized by a probate court. In addition, we can help you prepare for possible challenges to the will’s validity. 

Be aware that creating a will or making major changes to one at this stage in someone’s life can be fraught with legal risks. The fact that their health is failing might make it difficult for them to think clearly or make rational decisions.

They may also feel a sense of pressure that would cause them to make choices that they might otherwise not make under different circumstances.

Because of these risks, it is essential to be prudent when creating a deathbed will. Your Albuquerque deathbed will lawyer can help you focus on the best choices to make, especially if you are someone other than the person creating a will.

Naming someone on a property deed with joint tenancy rights of survivorship, for example, may be preferable compared to leaving the property to someone through a last-minute will.

In this vein, an experienced Albuquerque deathbed will attorney can provide invaluable knowledge and services. They will help you review not only the requirements for a valid deathbed will but also key aspects of the estate, including:

• Any current or previous wills and any other existing estate plan arrangements
• The contents of the estate to be disposed of (i.e., distributed to heirs), along with any assets that would transfer outside of the probated estate
• The beneficiaries of the new will, as well as any previous or presumed beneficiaries (e.g., grandchildren) “cut out” of it, who may have grounds to contest a will
• The provisions of the new deathbed will, especially those that involve complicated justifications or the transfer of highly valuable assets
• Arrangements for the personal representative (AKA the executor) of the estate, including contingency arrangements if they cannot (or do not want to) serve
• Any transfers occurring outside the will, such as property held in trust, retirement accounts, etc.
• Likely sources of conflict or reasonable grounds for contesting the deathbed will, with contingency arrangements to reduce the risk of the will being invalidated
• The obligations of the personal representative of the estate, including the steps of probate and the likely creditor claims and other administrative obligations they might encounter 
• Other components of the estate plan, such as a living will that dictates what would happen to someone if they slipped into a coma but were medically alive for a prolonged period
• Any other questions you, your family members, and other parties concerned might have

Through all of these services, an Albuquerque deathbed will lawyer can provide greater peace of mind. Deathbed wills are usually made amidst a cloud of uncertainty, and loved ones of the terminally ill person worry about what will happen even after a valid will is created.

With the services of an attorney, you can know exactly what the best legal path is, as well as how to prepare for possible challenges or issues that could come your way.

New Mexico Financial Law has assisted many families in Albuquerque and throughout the state in handling their most precious matters. Whether you are someone in failing health or someone very close to them, our primary goal is to take away some of the uncertainty and stress you may be facing, while securing the best possible future for your family, to the fullest extent of our abilities.

What Is an Albuquerque Deathbed Will?

A “deathbed will” is an informal term for a will created while the testator (the will creator) is in a state of rapidly failing health. While there is usually no way to predict with any certainty exactly when the testator will die, when a deathbed will is created, there is a high degree of concern that they could pass in the next few days or weeks.

Understandably, the terminally ill testator and their family members may be extremely worried about what happens to their estate. There may be pressure to create a deathbed will for the following reasons:

1. The testator has never created any sort of will before
2. The testator created a will, but they have not updated or expanded on it in a long time, and they desperately want to make changes to reflect their current wishes and their current estate
3. The testator has had a significant change of heart, and they want to make drastic changes to their will, such as giving a beneficiary much more than they originally would have received or disinheriting other beneficiaries

If a very sick testator wants to make changes to their will for any of the above reasons, they are legally allowed to do so, but only if:

1. They have the mental capacity to understand the legal and financial implications of what they are doing
2. They properly execute their will and have it witnessed, according to the laws of the state where their estate is going to be disposed of

Establishing Testamentary Capacity for a Deathbed Will

Perhaps the most important question to ask in a case where an Albuquerque deathbed will is being created is: “Can the testator actually make decisions that have a huge effect on their estate, or are they mentally unable to process such legal matters?”

Remember that this question may be considered both by a probate judge and by someone challenging the will’s validity. A will contestant may feel that the deathbed will made changes that actually go against the testator’s wishes, for example.

In that case, the interested party could contest the will even if it is initially going to be accepted by probate.

Testamentary Capacity Must Be Demonstrated to a Court in the Event of a Deathbed Will Challenge

At its heart, testamentary capacity “is a legal term that courts must decide, not a medical one.” If inadequate due diligence is performed prior to the testator’s death, it could be difficult to disprove allegations that they lacked capacity.

Consider that anyone in a “deathbed” state is likely to be in extreme pain and discomfort. They probably have been confined to a bed — or a few rooms of a home — for an extended period.

They could be experiencing delirium from fever, organ failure, low blood sugar, or the medications they are taking. Many hospice patients could be taking morphine, for example, if they have a painful condition like late-stage cancer. 

Cognitive tests and medical evaluations can be used to establish testamentary capacity. Witnesses can also converse with the terminally ill person and then sign statements attesting that the person seemed to be of sound mind and body.

These efforts should be overseen by an Albuquerque deathbed will lawyer to ensure that steps are taken to defend against possible future legal challenges.

Avoiding Accusations of Undue Influence

Another concern to be aware of is that, even if someone has testamentary capacity, they may be in a vulnerable position that makes them more likely to agree to will changes that substantially benefit one party over another.

The most obvious example is that a family member or other person close to the testator could be their primary caretaker. On a basic emotional level, the testator could feel overwhelming gratitude to this person not just for their care but also for their companionship.

In this state, the testator is vulnerable to being manipulated. 

On a more practical level, the testator could be worried that if they do not please their caretaker, they could have medical care, attention, or basic needs withheld. The potential for them to be abused could weigh on the decisions they make about their estate.

Therefore, if a testator makes dramatic changes to their will that favor their caretaker while in a medically vulnerable state, there could be fertile grounds for a will contest because of undue influence. Accordingly, anyone who is close to the testator should be careful not to provide specific advice or suggestions about how to make a deathbed will or what changes should be made.

Instead, they should rely upon a neutral, non-interested third party, like an Albuquerque deathbed will attorney.

A caretaker or someone close to the testator may even want to reject or push back upon requests to give them significantly increased value in the estate at the expense of another previous (or presumed heir). This conversation may be undertaken through a third party to avoid obvious conflicts of interest or appearances of undue influence.

The thing to be aware of, generally, is that major estate changes — especially those that negatively affect other family members and heirs — are more likely to be contested compared to minor ones because they create what is known as “suspicious circumstances.”

Accordingly, deathbed wills should seek to stick closely to previous arrangements, unless there is a compelling reason to make drastic changes aside from one person’s influence.

An Albuquerque Deathbed Will Must Be in Writing and Properly Attested

Unlike some other states, New Mexico does not recognize oral or “noncupative” wills because the testator is facing a likely demise. Instead, the deathbed will must be in writing (NM Stat § 45-2-502). It must also be signed by the testator or on behalf of the testator, at their direction and in their presence.

The signing of the will by (or for) the testator must be witnessed by at least two other parties, who then sign the will in one another’s presence.

To add to the will’s apparent validity, the witnesses can be two “non-interested” parties, meaning that they are not named in the will, are not the executors of the testator’s estate, and would not normally inherit anything under a will arrangement. The deathbed will can also be notarized, making the will “self-proving” and further aiding the ease with which its validity can be established.

Using Extra-Will Transfers in Addition to (or Instead of) a Deathbed Will

Ailing testators and their loved ones should remember that a will is not the only way to transfer property. Other means of transferring property include:

• Naming someone as a beneficiary on a living trust, retirement account, life insurance policy, payable-on-death (POD), or transfer-on-death (TOD) account
• Listing someone as co-owner of a property (such as a house or vehicle) on a deed that provides joint tenancy with rights of survivorship (JTWROS)

Note that making a beneficiary change also requires that the party making the change has the mental capacity to understand what they are doing. Otherwise, the changes could be contested.

However, challenging a beneficiary change can be more difficult than challenging a will. The challenger has to first prove that they have standing.

Standing requires that they are a party that would otherwise have an interest in the transfer if not for the changes made. For example, they can be a close family member, someone previously named as a beneficiary, or someone who would suffer clear and immediate harm from a fraudulent or improper change being made. 

Someone with standing then has to prove that the account or property owner lacked capacity when they made the change. Alternatively, they could also prove fraud, undue influence, or that a mistake was made.

Proving any of the above can be more difficult for property that is transferred outside of probate. Often, what happens is that a financial institution will approve a transfer to the beneficiary immediately after it receives proof of death.

The contesting party then has to sue the bank or petition a court to reverse the transfer.

Refer to an Albuquerque deathbed will law firm for more guidance on using trusts, account beneficiary designations, and other transfer mechanisms in a legally compliant way. An experienced attorney can help you avoid actions that could be subject to challenges or other issues while helping you or a loved one succeed in their estate plan goals.

Reach Out as Soon as Possible to an Albuquerque Deathbed Will Law Firm If You Want Help

Making changes to a will or estate plan can be difficult when someone is in a medically and psychologically vulnerable state. Such changes could be seen as occurring under shaky legal grounds if the right due diligence is not performed.

New Mexico Financial Law wants you to understand all of the options that are available to your family in your delicate situation. We always speak honestly about what moves would be recommended versus those that would be discouraged.

Our efforts can help you ensure that the will left by someone in failing health accurately reflects their wishes for the future well-being of their family and loved ones. Get started examining your options (and possible alternatives) for creating a deathbed will when you call 505-503-1637 or contact us online to schedule a confidential, no-obligation case review.