A formal will refers to any will that is written, executed, and witnessed in the typical manner. Certain states may recognize alternatives to a formal will, such as an oral will, holographic will, or electronic will.
Probate courts in Albuquerque — and throughout the rest of the state — do not recognize these non-formal wills. The only exception is if the will was created in a jurisdiction where the will creator lived that would legally recognize the will at the time it was completed.
New Mexico Financial Law can help you create a properly executed formal will that is legally compliant with all laws in Albuquerque and throughout the state. An Albuquerque formal will lawyer can also work with you to ensure that the language of your will accurately reflects your wishes and can be easily carried out by your estate’s personal representative.
Schedule an appointment to go over your formal will, along with the rest of your estate plans, when you call us today at 505-503-1637 or contact us online to schedule a no-obligation consultation.
Creating a formal will is not as simple as writing down who you would like to receive what assets when you die. There are also other important concerns to take care of, such as the nomination of an executor (referred to as a personal representative in state law).
In addition, the person creating the will (known as a testator) has to be careful about the language they use and the way they structure their document. They want to ensure that everything they write is going to be:
Hiring an Albuquerque formal will attorney can ensure that your will satisfies all of the above criteria. Using the full extent of their knowledge and experience, your attorney can recommend best practices so that your wishes can be easily understood and carried out.
They can also help you prevent common mistakes, such as failing to recognize that all community property must go to your spouse in a typical situation.
Reach out to New Mexico Financial Law to get assistance with creating your formal will. With an attorney’s help, you can incorporate your will within a larger estate plan that encompasses all of your property, not just what will enter probate.
You can also consider options like forming a trust, which allows most of your property to bypass probate, or drafting a living will, which states what life-prolonging measures you would want to receive after you have been incapacitated.
If you already have a will or some form of estate plan, it is prudent to review them with the help of an attorney periodically or after any major life changes.
With an up-to-date formal will and comprehensive estate plan, you can relax knowing that — no matter what happens — your legacy can be protected, your loved ones can be cared for, and your wishes can be clearly represented in a legally enforceable way.
A formal will should fulfill a few different objectives. These include:
In addition, a will can contain other information and instructions, such as:
To ensure that a document can be submitted as their will, the testator should clearly designate it as such in the opening paragraphs. They can say something to the effect of “this document shall serve as my last will and testament, for use in the disposal of my estate…”
The testator should be clearly identified, and the will should be clearly dated. The testator may also want to formally revoke all older versions of their will in print.
These efforts can ensure that the will can be connected to the testator, that the document is understood to be a will (as opposed to a note-taking device or some other informal document), and that it is the version of the will that should be used in probate by their personal representative.
The testator can state their preference for who shall act as their estate’s representative in probate and other proceedings. The personal representative should be clearly identified, including their name, last known place of residence, and any current contact information (or references to where that information can be found).
Note that your first choice of personal representative may not be available, such as if they have died, cannot be contacted, or lack the capacity to handle the responsibility. Personal representatives can also refuse their duties.
As a precaution, the testator can name backup personal representatives in their will.
Note that, without the designation of a personal representative, a probate court may appoint one on behalf of the testator’s estate. The court prefers appointing someone with a close personal relationship to the testator, but they may end up appointing a creditor or some other party with an interest in the estate if the testator neglects to provide information on who should serve and how to contact them.
If the testator has minor children or adult dependents at the time of their death, they can include language in their will selecting an appropriate caretaker. The will can also provide general guidelines for the caretaker, to a limited degree, but any such instructions are likely to be considered as requests, since the guardian assumes full legal control and responsibility for their ward.
A will can also elect a caretaker for a beloved pet that survives the testator, but a pet trust may be preferable to this, for several reasons. Foremost: a pet trust can enforce certain standards of treatment for the animal’s care and make distributions from the estate contingent on the pet receiving this level of treatment.
A pet caretaker nominated in a will can decline their responsibility or fail in their duties without repercussions, in most cases, by comparison.
A will’s most notable function is to dispose of an estate. This estate can consist of the bulk of a testator’s possessions, assets, and property — unless they transferred most of it to a living trust prior to their death.
Using a will, the testator can bequeath specific assets to specific beneficiaries, generally divide the value of assets among beneficiaries, or provide instructions for some combination thereof.
Testators should be careful to be clear about who receives what, in either case. They should also take the time to consider unexpected scenarios, such as what might happen if a valuable property unexpectedly burns down.
Would the person inheriting the property receive additional estate assets to make up for this loss in value? An Albuquerque formal will lawyer can help you anticipate situations like these and form appropriate contingency plans.
Wills can also include a residuary clause that handles the disposal of all assets that weren’t specifically mentioned. For example, a clause could state that all children divide the remainder of the estate evenly, for all assets not distributed in a specific way elsewhere in the will.
A will can include requests for certain arrangements to be made on behalf of the decedent. For example, the decedent can request a formal funeral and burial at a religious institution.
They can also request an informal ceremony, such as a cremation and scattering of ashes on their private property, in the presence of those they loved in life.
These arrangements are not legally binding, in most cases, but they do provide instructions to your personal representative. It also supplies information for loved ones to understand what you would have wanted.
Handling of remains and memorialization can be made easier through prepayment and signed agreements with funeral homes (or another licensed services provider).
In addition to all of the above sections, a will can contain the following:
A formal will in Albuquerque must satisfy the following conditions (NM Stat § 45-2-502):
For the formal will to be valid, the testator must be at least 18 years old or an emancipated minor. They must also have the capacity to legally understand that they are signing a will.
Witnesses to a will must be at least 18 years old, as well (they cannot be an emancipated minor). They must also have the capacity to understand that the testator is signing an important document (they don’t necessarily have to know it’s a will) and that they are applying their signature to affirm their witnessing of that act.
Some assets can be transferred without a will. The transfer of these assets happens automatically upon proof of death of the original account holder/policyholder/named party.
By comparison, assets in an estate first must be inventoried during probate and considered for their use as a way to repay debts, family allowances, and other estate costs that come before beneficiary distributions.
A will can be amended at any point by making a document called a codicil, which provides additional instructions or describes changes to a pre-existing will. This document must be signed and witnessed in the same manner as a formal will.
Alternatively, the testator can make a new will that disposes of the same property mentioned in an older will, or they can formally revoke their will. A will can be revoked through language in another will, or a similar document that has been properly executed and witnessed.
A will can also be revoked through any “revocatory act,” which can include “burning, tearing, canceling, obliterating or destroying the will or any part of it,” regardless of whether the act physically touched or damaged the actual words of the will (NM Stat § 45-2-507).
The most common method of revoking a will is to shred or burn any physical copy and include language in a new will expressly revoking any wills created at an earlier date.
Estate planning professionals recommend reviewing and potentially revising your will at least once every two to three years. It should also be reviewed after major life changes, such as the birth of a grandchild, significant changes to the willed estate, a divorce, the death of a previously selected beneficiary, etc.
To some, wills may sound easy to create and execute, but the reality is that you may commit serious mistakes — and by the time anyone realizes it, it could be too late. The best course of action is to get professional and experienced help from a reputable Albuquerque formal will law firm.
New Mexico Financial Law can assist you with all steps of creating a formal will, as well as with the formation of the rest of your estate plans. Speak to a highly experienced attorney and get the benefit of a professional’s advice when you call 505-503-1637 or contact us online to schedule a no-obligation consultation.
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