A last will and testament, often shortened to just a “will,” names a person to represent your estate after you die and provides them with instructions for distributing your estate to heirs. A will can also name a guardian for any minor children or adult dependents you may have, and it can also state your preferences for a memorial service and the handling of your remains.
Even a simple will for a modest estate should take care to completely dispose of the estate and provide for contingent (or “backup”) beneficiaries in case another beneficiary is unavailable. Your will should also be sure to include clear, definitive, and unambiguous language that can be legally enforced through Albuquerque probate.
Hiring an Albuquerque simple will lawyer allows you to consider the full scope of your estate and create a will capable of carrying out your wishes after you are gone. Any mistakes in your will, its execution, or your other estate plans could jeopardize this outcome. Accordingly, you can seek legal assistance to verify that your will has everything it needs to dispose of your estate in the way you would want.
Schedule a confidential appointment and estate plan review with an Albuquerque simple will lawyer at New Mexico Financial Law when you call us at 505-503-1637 or contact us online.
Will creation should be approached both carefully and deliberately. While a simple will can seem like something that could be easy to produce, the reality is that there are statutory laws, policies, and case laws that could all affect how your will is carried out. Your estate representative also has to be able to interpret your will, and they may face possible challenges to how they intend to carry it out — especially if there are issues that could give someone solid grounds for a contest.
An Albuquerque simple will attorney can work with you during will creation to prevent common mistakes and anticipate any complications that could arise. Their guidance helps you avoid unintended consequences, maximizing the chances that your will is going to manage your estate according to your wishes.
As part of your will creation journey, your Albuquerque attorney may recommend taking the following steps:
Many families are reluctant to discuss estate plans because they worry about the topic being uncomfortable. They may also want to avoid tense conversations that can arise when money is being discussed among family.
The important thing is to get these conversations out of the way now, while you are alive, rather than saving them for an even more dire moment after your death. You can also seek input for what a possible beneficiary might want. For example, one child may prefer receiving real estate while the others would just liquidate the house and prefer cash.
At the very least, discuss your preferred simple will arrangements with a spouse, your intended estate representative, and any other primary beneficiary, as these individuals are going to be impacted the most by the contents of your will. You want them to understand your wishes and be able to anticipate how your plans will play out after your death.
Your will should be comprehensive, describing how you want every last asset distributed. While you can always dispose of the remainder of your assets with a residuary clause, forming a list of assets helps you think carefully and strategically about the contents of your will. Be sure to include all accounts in this list, as well, including retirement accounts, banking accounts, trusts, and closely held business shares.
You should also list any debts you may have, which can be beneficial to your estate representative, heirs, and other parties who have to manage your estate. Your goal for estate planning should be to set aside enough liquid cash to take care of these debts — or else your heirs may end up splitting the difference pro rata out of their inheritance.
A will can also list any important elements of your estate, such as your membership in business groups, country clubs, or organizations like the AARP.
Making a list of all beneficiaries can help you stay organized while creating a simple will. You can begin to categorize them in groups, or check them off one by one as you draft your plans.
Your estate representative — also known as an administrator or executor — is responsible for understanding your will, entering it into probate, and handling any estate-related matters like paying off unpaid debts. Once probate has concluded, your representative is the one who handles the distribution of assets to beneficiaries.
Include a backup representative in case your primary choice dies, cannot be contacted, or declines to serve.
At this stage, you can outline the contents of your will or even create a draft. If you have any earlier copies of your will, you should refer to them during this step.
Organizing your thoughts and plans makes it easier to draft the appropriate language when you meet with your Albuquerque simple will lawyer.
An attorney helps you pick the right language for your will while including important provisions to reduce the risk of confusion or contests. For example, your attorney may recommend that you submit to cognitive testing and obtain a certified letter attesting to your competence if there is a chance that your legal capacity could be called into question.
Your lawyer can make recommendations based on your listed assets, documented preferences, and any concerns or special arrangements you want to make. With your attorney’s guidance, you can then create the best will possible — one that reflects your unique situation and your goals for the legacy you want to leave behind.
A properly executed will in Albuquerque meets the following criteria (per NM Stat. § 45-2-502):
In addition to a simple will, your estate plan can have the following components:
The person you nominate as your estate representative has the right to know about their selection and the general contours of your plans. They should also be aware of the location where the signed and attested hard copy of your will is located. This location should be in a fireproof filing cabinet, safe, or safe deposit box.
Your will may need regular updates, depending on adjustments made to your estate and major life changes like a divorce, the birth of a new grandchild, or the sale of a major asset. Your Albuquerque simple will lawyer can help you review your will periodically and adjust it as needed.
One of the simplest types of wills you can create is known as a “pour over” will. It lists a pre-existing trust as the sole beneficiary.
Alternatively, you can have a will create a testamentary trust and use it to retain the entirety of your estate.
Once your estate has been transferred into a trust, a trustee becomes responsible for managing it. They are tasked with handling the trust’s assets and obeying any other instructions or rules you have provided. The trust lists beneficiaries, who receive distributions (e.g., payments) from the trust, according to your wishes.
Trusts can simplify estate planning greatly, especially if one is formed during an individual’s lifetime. Any assets held in a living trust do not have to enter probate, so your estate representative has less work to do, enabling them to resolve your affairs on a shorter timeline.
In addition, the contents of a trust are kept private. A probated estate must make a public announcement, by comparison, and the contents of the estate may become public record. These announcements are made for the sake of possible creditors or contestants to a will. Accordingly, a living trust can not only help keep a family’s legacy more private, but it can also reduce the risk of creditor claims or contested inheritances.
While trusts aren’t required for simpler estates, they can be extremely beneficial for individuals with complex assets. They can also provide specific instructions to trustees to help them decide when it might be appropriate to make a distribution to a beneficiary.
For example, while a will requires estate assets to be distributed automatically after probate ends, a trust can instruct a trustee to wait until a specific date or event before making a distribution. These arrangements can delay a distribution to a minor beneficiary until they reach age 18, or they can instruct the trustee to only provide a distribution when they graduate from college.
New Mexico probate law (NM Stat § 45-2-402) requires that a surviving spouse receive at least $30,000 from the estate of the deceased spouse as a family allowance. If there is no surviving spouse, then any surviving minor (or otherwise dependent) children receive $30,000, split evenly amongst them. This payment is supposed to occur before any assets are transferred via a will, so make sure to account for it within your estate plans.
A will can specifically waive this allowance, especially if the spouse signs in agreement acknowledging their right to otherwise receive it.
Note, however, that individuals who would normally be presumed to obtain an inheritance could have grounds to contest a will if they get nothing. The presumed heir may challenge that the will was created through fraud, duress, misrepresentation, or undue influence. Courts can sometimes side with these challenges, awarding the contestant what they feel is an appropriate amount of the estate.
To make a successful contest less likely, it helps to include specific language noting the disinheritance. The testator can also provide a justification for their decision, which can be as simple as saying something like “for reasons known solely to me…”.
If you intend to disinherit a spouse or close relative or give all of your estate to charity, refer to an Albuquerque simple will law firm for guidance.
Creating a so-called “simple will” can sometimes lead to unexpected challenges and complications — most of which are not likely to arise until long after you are gone. To ensure that your wishes can be well understood, legally enforced, and carried out as effortlessly as possible by your loved ones, take the time to meet with an Albuquerque simple will lawyer.
You can reach out to New Mexico Financial Law at any time to schedule a confidential, no-obligation consultation with an experienced attorney when you call us at 505-503-1637 or contact us online.
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