A nuncupative will is a special type of oral will that is recited in front of witnesses while the testator (the person creating a will) believes they are facing imminent death. Most states, including New Mexico, do not accept a nuncupative will as valid. Those that do often only do so under limited circumstances, and the will’s validity may expire if the testator did not, in fact, die of the cause they feared.
If a nuncupative will was created under valid conditions by a person residing in a state that recognizes these unique wills, then it could be admitted in Albuquerque probate.
Reach out to an Albuquerque nuncupative will lawyer to determine if an oral will can be used to dispose of an estate or whether alternative options must be sought. You can schedule a confidential, no-obligation consultation at New Mexico Financial Law when you call us at 505-503-1637 or contact us online.
If you are an estate representative seeking to use a nuncupative will in Albuquerque, our attorneys can help you determine if the testator had a valid claim to residence in a state that would usually consider the will to be valid. An Albuquerque nuncupative will attorney can then verify whether the will satisfies all of the requirements for that particular state.
Since states often impose strict limits on a nuncupative will, an Albuquerque lawyer may perform additional fact-finding to verify that the will would be considered valid. For example, if the nuncupative will was created in New York, the testator must have been a member of the U.S. Armed Forces (or someone otherwise directly supporting the Armed Forces) who is stationed abroad and involved in a combat operation, or they could be a mariner at sea. The nuncupative will then expires within one year of the testator’s discharge from the Armed Forces (or from the time they ceased to support or accompany Armed Forces) — unless the testator was a mariner, in which case their nuncupative will is valid for three years from the time the will was created (NY Est Pow & Trusts L § 3-2.2 (2024)).
With our assistance, you can take steps to verify the validity of the will and determine if it can be used to dispose of the testator’s estate. If there are any issues with doing so, an Albuquerque nuncupative will lawyer can help you determine the next-best options you have, such as using an older will, looking for other valid documents that transfer property, or following the appropriate rules for intestacy.
If you are someone who has made a nuncupative will — or someone close to this person — then we can help you determine if a valid written will can be made. Ensuring that an estate is disposed of through a will is critical for maintaining control over your legacy. The alternative is for the state to decide who gets what, based on its rules of intestacy.
A nuncupative will is an oral will that was declared in front of witnesses, usually in response to a threat that could result in the likely death of the testator. Often, these rare types of wills are used by sailors at and members of the Armed Forces deployed abroad. These individuals may be at risk of dying without having the opportunity to write and execute a formal will. They may also be used by people who are facing imminent death from a terminal health condition.
The term “nuncupative” is derived from the Latin verb “nuncupare,” which means “to name” or “to declare.” Oral wills were more common in an era before widespread literacy and easy access to writing, including in Ancient Rome and the early centuries of British Law. In fact, United Kingdom law still recognizes nuncupative wills in cases of military service abroad or while at sea.
Albuquerque — and the rest of New Mexico — only recognizes wills that are “written” and that have been properly executed, attested, and witnessed.
Under state law (NM Stat § 45-2-502), any document that is intended to be used as someone’s will must be:
Under these rules, nuncupative or other types of oral wills are expressly not permitted. Any will created must also be properly witnessed, which means that holographic wills may also not be used in the state.
New Mexico law (NM Stat § 45-2-506) may allow for the use of a will “if its execution complies with the law at the time of execution of the place where the will is executed or of the law of the place where at the time of execution or at the time of death the testator is domiciled or is a national.”
In other words, if someone is a resident of or is otherwise currently domiciled (living in) a state that recognizes nuncupative wills, they may be able to enter their will into probate in Albuquerque.
The Full Faith and Credit Clause (Article IV, Section 1) of the U.S. Constitution requires states to respect the laws and legal recognitions of other states, in nearly every case. It’s because of this rule that someone can legally drive even if their driver’s license was issued out-of-state.
Note that the burden of proof falls on the personal representative of the estate (AKA the executor) to establish that all rules are met for the will to be considered valid in the state where the testator created their nuncupative will.
Only a few states allow for a nuncupative will to be used to probate an estate. They are:
The circumstances in which a nuncupative may be used are described in greater detail below, along with the states that follow that particular set of rules.
Note that many states also restrict the value of property that is disposed of through a nuncupative will, and the state may not permit the transfer of real property through a nuncupative will, in any case.
In addition, state law may require a certain number of witnesses, who may be required to record the will in writing within a short period after bearing witness to it. These witnesses usually have to be able to provide evidence that the testator intended their statements to serve as a will-in-fact, rather than a non-binding statement, preference, or consideration.
In the above states, a nuncupative will may be used if the testator is facing certain peril, such as if they have a terminal medical condition or are otherwise in a position to know that they are soon going to die. If the individual does not die of the peril that caused them to fear for their life, then the nuncupative will is invalid.
The value of property that can be disposed of through a nuncupative will in this fashion varies by state. Missouri, for example, only allows for up to $800 in property to be distributed through a nuncupative will, and Indiana only allows property valued up to $1,000. Neither state allows a nuncupative will to completely revoke or alter an existing valid will, except for the specific property referred to by the nuncupative will.
In these states, the testator must be serving during a hostile operation or at sea. Once the testator’s service ends, they have a limited time in which the nuncupative will remains in effect — an example is provided above for the state of New York.
In New Hampshire, by comparison, there is no time limit for the nuncupative will to remain in effect. However, the nuncupative will only applies to property up to $100 in value.
Ohio is unique in terms of its nuncupative laws, declaring:
An oral will, made in the last sickness, shall be valid in respect to personal property if reduced to writing and subscribed by two competent disinterested witnesses within ten days after the speaking of the testamentary words. The witnesses shall prove that the testator was of sound mind and memory, not under restraint, and that the testator called upon some person present at the time the testamentary words were spoken to bear testimony to the disposition as the testator’s will.
— OH Rev Code § 2107.60
The nuncupative will must also be entered into probate within three months of the testator’s death.
If a nuncupative will is submitted into probate court in Albuquerque and is determined to be invalid by the court, then the estate’s personal representative should attempt to furnish a valid, non-revoked will. They can look for any will that was properly executed and witnessed, per state law. Or, they can attempt to submit another will that was created by the testator in a place where they resided and where the will would be considered valid.
In cases where there are multiple potentially valid wills, state law (NM Stat § 45-2-507) dictates that preference will be shown to the most recently created will. If the most recent will fails to completely dispose of the estate, then an older will that references any overlooked property may be used to supply instructions for the distribution of those specific assets.
Note that the execution of a new will is presumed by state law to revoke any previous wills. This revocation may not apply, though, to property only mentioned by an earlier will, as described above.
If an estate does not have a valid will that can be submitted into Albuquerque probate, then the decedent’s property is going to be distributed via state laws for intestate succession.
Under intestate succession laws, all community property jointly owned by the decedent and their spouse is transferred to the surviving spouse. The surviving spouse also inherits one-fourth of the decedent’s separate property, splitting the remaining separate property with any “surviving issue” (AKA children) of the decedent. The surviving spouse inherits everything if there is no surviving issue.
In cases where there is not a surviving spouse, the issue of the decedent or their next-of-kin will inherit their estate instead. Parties that could inherit property, in order of priority, include the decedent’s:
Handling an estate with a nuncupative will in Albuquerque can create complications for the estate representative and any heirs. If the testator is still alive and has the capacity to make a valid will, they should reach out to an Albuquerque law firm as soon as possible for assistance. An attorney can help them make a written will that accurately records their wishes and that can be admitted into probate in the state of New Mexico.
If you are someone who is handling an estate that is supposed to be distributed via a nuncupative will, our law firm may be able to assist you. We can help you determine if the will is valid and if any other evidence or documentation is required to enter the will into probate. If the will cannot be used, we can help you determine the best next course of action to take.
New Mexico Financial Law is ready to assist you any way we can. Schedule your no-obligation consultation with an experienced attorney when you call 505-503-1637 or contact us online today.
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