Albuquerque Mutual Will Lawyer

A mutual will can be used by two individuals with closely connected finances (usually spouses) to ensure that both parties follow the same arrangements for handling their estate after they pass.

By creating mutual wills, each party arranges to have basically the same outcome for their heirs, regardless of who dies first. The common arrangement is for the first-to-die spouse to will their entire estate to the surviving spouse, with the expectation that the property will then be divided amongst the couple’s children after the second spouse passes.

Often, a mutual will is accompanied by a codicil (a document altering a will) signed by both parties stating that neither will can be changed without the other party’s consent. This legally binding agreement effectively “locks in” mutual will arrangements once a spouse dies.

New Mexico Financial Law can help you decide if a mutual will is in the best interests of your estate. You can speak to an Albuquerque mutual will lawyer during a confidential, no-obligation consultation to learn more when you call 505-503-1637 or contact us online to schedule your appointment today.

Important Factors to Consider With Your Albuquerque Mutual Will Attorney

Even if your mutual will can be revoked without the consent of your partner, creating one is a major commitment. Since we can never truly predict the time of our death, you never know when your will is going to be the final word on what happens to your entire life estate. And if you end up having second thoughts on your mutual will, you may need your partner’s input to make changes.

The best course of action, in any case, is to speak to an experienced professional who can give information, guidance, and advice on the best path for your unique estate. An Albuquerque mutual will attorney can meet with you to review your estate portfolio, discuss your goals, and help you understand all of the most important factors to consider when writing your will.

Some key considerations when creating a mutual will include:

• Are you comfortable with entering into an agreement that bars you from amending your own will without the consent of a spouse or partner? Note that this can become a major issue after the other party’s death.
• Would you be interested in forming a joint trust? What about arranging to have a residuary/bypass trust created after the first spouse’s death? Both approaches could provide many of the asset preservation benefits of a mutual will with more flexibility and fewer limitations.
• Who would you want to serve as the personal representative for your estate? Are you and your spouse in agreement as to who this person would be?
• Do you or your partner currently have any minor or adult dependents? Do you agree on the person who should serve as their guardian?
• Have you accounted for any possible costs that might be borne directly by your estate before probate has concluded and distributions occur? For example, your estate may encounter creditor claims or unexpected administration costs. In addition, you may be obligated to pay a spousal allowance or family allowance that is separate from any inheritance arrangements.
• How does your mutual will interact with the rest of your estate plans, such as a retirement account, life insurance, or a living will?

During your meeting with an Albuquerque mutual will attorney, you can discuss your unique financial portfolio, future plans, and family situation. Your attorney can then provide personalized feedback and guidance on any plans you are considering. Their goal is to help you build a comprehensive estate plan — one that leaves you feeling confident about what the future may hold for your loved ones.

How Does an Albuquerque Mutual Will Work?

Like other wills, a mutual will comes into effect after your death, declaring your final wishes for the following major decisions:

• How you want to dispose of (i.e., distribute, bequeath, or give away) all of your property, which is collectively referred to as your “estate”
• Who you want to act as your personal representative, AKA your executor
• Who you want to serve as guardian for minor children or adult dependents
• Your preferences for the handling of your remains and a service memorializing your life

What makes a mutual will different is that it mirrors the wishes of two people. As an example, let’s consider the hypothetical estate of two people: Bobby and Betty. Since they live in New Mexico, 50% of their community property automatically becomes the sole property of the surviving spouse once they pass on.

As part of his mutual will, Bobby bequeaths all of his remaining community property and separate property to Betty. Once Betty dies — or if Betty dies before or around the same time as Bobby — then all of Bobby’s property gets divided between the couple’s three children.

Betty’s will reflects the exact same arrangements: Bobby gets all of their community property and all of her separate property. Once Bobby dies — or if he is already dead at the time of Betty’s death — then the three children inherit everything, divided equally.

Irrevocable Mutual Wills

Many times, a mutual will is further governed by a codicil signed by both parties. The typical codicil for a mutual will requires that both parties consent to any changes made to either will. This arrangement prevents a situation where a will could be changed without the other partner’s knowledge.

Importantly, since someone who has died cannot consent to a legal arrangement, the survivor’s will becomes irrevocable upon the death of the first party. This situation can easily create complications, which will be discussed in further detail in the next section.

Fortunately, Albuquerque mutual wills are considered to be revocable by default under state law. New Mexico Statutes (Amended 2024) § 45-2-514 (B) states: “The execution of a joint will or of mutual wills does not create a presumption of a contract not to revoke the will or wills.”

In other words, the act of creating mutual wills does not automatically mean that the wills cannot be revoked without the mutual consent of both parties. Instead, the wills can be amended or revoked at any time, by default.

For mutual consent to be needed, the parties must execute a signed and witnessed codicil stating this preference. The agreement should also clearly state that the arrangement persists after a party’s death. Otherwise, a court may rule that the contract was nullified upon the death of the first party.

Under these default arrangements, either spouse is free to change their will at any time. This arrangement is usually referred to as a “mirror will”, rather than a mutual will, since the wills reflect each other’s preferences but aren’t bound by a mutual consent agreement.

Why a Mutual Will That Requires Mutual Consent to Amend Can Create Major Estate Planning Problems

When mutual wills are accompanied by a legally binding agreement to not amend the will without both parties’ consent, challenges can emerge once a party dies.

For example, if a mutual will requires a surviving spouse to pass property onto a specific person (or persons), then there is a major risk that the survivor will be unable to enjoy full use of the property as they see fit. Instead, they are obligated to preserve the property in its current state (or as close to it as is reasonably possible) for the sake of the person who eventually inherits it.

This arrangement can create major problems for certain assets or situations. One of the most obvious issues is that the surviving spouse may want to sell the property for various, highly valid reasons.

For example, let’s say there’s a mutual will that leaves a home to a surviving spouse and requires the spouse to then pass the home onto a nephew. Because the couple signed a codicil that required both parties’ consent for the mutual wills to be changed, this arrangement cannot be altered once the first spouse dies.

Now, consider that the surviving spouse may want to move someday. They may want to downsize, or they may get a job in a completely different area. Because of the will, they could be legally unable to sell the home. They may also be unable to make significant modifications to the home, such as building an addition for an elderly parent to live in later on.

Further, the nephew may not even want the house by the time they are old enough to possibly inherit it. Nevertheless, because of the mutual will arrangements, the house is willed to them.

Situations like this show how binding mutual wills can create discontent, in the best cases, and serious financial or legal hurdles in the worst ones. As such, an Albuquerque mutual will lawyer may instead recommend that a mutual will only dictates what happens to property until the death of one party. At that point, the surviving spouse inherits the property to use according to their best judgment. They can then decide who to leave this property to, at their own discretion.

The challenges presented by mutual wills are well-documented, with a 1929 Pennsylvania Law Review article declaring that they “are of such an awkward nature as to discourage those forms of testamentary disposition” and that they “multiply the uncertainties of single wills geometrically.”

Alternative Arrangements: Joint Trusts and Bypass Trusts

Understandably, some couples want to put mutual will arrangements in place to ensure that certain beneficiaries receive cherished property. Otherwise, there is the risk that after one spouse dies, the other spouse could decide to disinherit the original beneficiary.

A common example arises in blended families: the surviving spouse may want to split all of their inherited property equally among beloved family members after they remarry and sire new children. The older beneficiaries can sometimes even be cut out entirely in favor of the newer family members.

If the goal of a mutual will is to preserve property and prepare for this type of situation, a properly formed trust can be a better and more suitable substitute. Commonly, the couple would form a joint trust holding all of their property. When a spouse dies, some of their community property can be spun off into an irrevocable “bypass trust,” along with all of their separate property. The surviving spouse may be able to use and enjoy the property, according to their discretion, such as by visiting a vacation home owned by the trust. However, the property is reserved for its eventual acquisition by the final beneficiary.

With this arrangement, the couple’s children (or other beneficiaries) could have a perpetual legal right to the property. Unlike with a mutual will, a trustee can be put in charge of ensuring that this arrangement comes to bear. Also, the surviving spouse may be able to draw an income or have powers of appointment to access some of the principal assets of the bypass trust in an emergency.

Even if the surviving spouse is appointed as a trustee, the beneficiary may find that they have rights that are easier to argue for and enforce with a trust in place, compared to a will. They can petition the trustee to enforce the language of the trust and prevent an unapproved usage or transfer of the property. If the trustee is not abiding by the trust’s terms, the beneficiary has legal standing to ask a court to compel the trustee to enforce the trust’s rules — or even remove the trustee, in the most extreme cases.

Discuss Your Options for Planning for the Future With an Albuquerque Mutual Will Law Firm

Mutual wills can solve some problems, but they may potentially introduce others. As such, they may be less desirable compared to mirror wills, which are non-binding and revocable.

However, part of your estate planning may involve making specific plans about who should eventually inherit an asset. You may be worried about a blended family situation arising, having your heirs become estranged from a surviving spouse, or other possible situations that can make it less likely for the assets to find their way into the intended hands. If this is the case, you can discuss options like forming a joint trust. Or, you could include a beneficiary on the title for the property and give them irrevocable rights of survivorship.

The right choice depends completely on your goals, your specific assets, and your unique life situation. Reach out to our Albuquerque mutual will law firm to find out more about your options and make the right estate plans for your particular family.

Schedule an appointment with an experienced mutual will lawyer in Albuquerque when you call

505-503-1637 or contact us online.