Writing a will is a critically important responsibility at any age. Many people wait decades after entering their careers before they even begin to think about writing their estate plans down. The unfortunate reality is that we never know what tomorrow may bring. Without a will, your loved ones could be left confused, and they may have difficulty managing your estate without your instructions. Because of the risk of this scenario, it’s prudent to begin working with a Las Cruces wills lawyer as soon as you can.
A will not only gives you the chance to decide who should inherit your property, but it also allows you to make important designations, such as who should serve as your estate representative or the guardian of your children. This information gives your loved ones clarity, and it can also prevent delays or unnecessary stress during probate.
Creating a will requires many key decisions. If you have a complicated asset portfolio or a lot of debts, estate planning can get even more intricate. Ideally, your will is easy to follow and unlikely to create significant confusion or strife once you pass. A Las Cruces wills attorney can help you with achieving these goals, along with others related to building a comprehensive estate plan.
Start the process by reaching out to our Las Cruces wills law firm when you call us at (505) 503-1637 or contact us online today.
A last will and testament — usually shortened to just “will” — is an official legal document with a long history. Creating a will is the only legal way in New Mexico (and throughout most of the United States) to have an actual say in who inherits your property.
When you die without a will, you are declared intestate, meaning your loved ones have nothing giving them the authority to act out your wishes for your estate. Instead, they have to petition the court to appoint an estate administrator. Then, the estate administrator has to distribute property according to New Mexico’s intestate succession laws.
Usually, this situation results in a surviving spouse and children inheriting property, but your parents, siblings, or other family members may end up inheriting everything if you don’t have a spouse or descendants. Everyone who inherits also has to split the entire estate evenly, which usually requires that the estate’s assets are sold off.
Because intestate succession laws can produce a situation that the person who died (known as the “decedent”) would not have wanted, they should use the opportunity to create a will during their lifetime.
In addition to assigning heirs, a will can also:
A will not only brings closure for loved ones, but it also speeds up the process of probate while giving the decedent control even in death. For all of these reasons, it is best to go ahead and create a will as soon as you can with the help of a Las Cruces wills lawyer.
Your will should start by clearly identifying your heirs by their full legal name. You can go even further by listing the date of birth of the heir and their relationship to you to ensure there is no ambiguity.
You can then describe your assets, which make up the contents of your estate. You can include language distributing specific assets to each heir, or you can describe assets categorically. For example, you can say something like “I leave my gold cufflinks, originally belonging to my grandpa George, to my nephew Bradley Buckingham,” or you could say “I leave the entirety of my valuable jewelry and accessories to my nephew Bradley Buckingham.”
You are allowed to describe scenarios where someone might inherit something only under certain conditions, which is known as a contingent beneficiary or a contingency clause. For instance, you can say: “If a person is unable to inherit any of my personal property or does not wish to, I leave it to my wife, Ellen.”
You can also assign specific asset values to certain heirs, which allows your personal representative to decide how to distribute property in order to meet that value.
Keep in mind, though, that simpler wills are always better. The more complicated you get with distributing property, the more likely it is that there could be confusion — or even competing claims on the same item. One common issue is to appear to promise the same asset twice. Another issue is to overestimate the final value of the distributed estate, which can mean that certain heirs have to be prioritized over others.
Because of the risk of ambiguity, confusion, or mistakes like promising the same assets to two different people, it is often in the best interests of your estate to refer to a Las Cruces wills lawyer when creating your final will draft. Using their experience, your attorney can help you anticipate common problems that arise and avoid them using the most direct and unambiguous language possible.
A Las Cruces wills attorney can also help you understand more about probate, including what responsibilities your personal representative is going to have. With this perspective, you can make decisions that make life easier for your personal representative while intentionally avoiding language or arrangements that could lead to confusion or conflict.
Anyone who is 18 years or older (or an emancipated minor) can make a will, provided they have the mental capacity to understand what they are doing (NM Stat § 45-2-501).
They can receive assistance with creating the will, such as by using a template or having a Las Cruces wills law firm draw up a custom document for them. However, they have to read the will in full, understand what it says, grasp how their decisions affect their estate, and be aware that the document they are executing is going to serve as their last will and testament.
For a will to be used during probate, per state law (NM Stat § 45-2-502), it must be:
Once executed, the will is considered valid to handle the testator’s estate. A will remains valid until it is revoked, intentionally destroyed, or superseded by a newer version that is properly executed by the testator.
Another important function of your will is to nominate the person who you want to handle your affairs and take your estate through probate. This individual is officially known as your personal representative. They may also be called an executor or administrator in other contexts.
All you have to do to elect a personal representative is list their full name and, preferably, their relationship to you. Anyone who is over the age of 18 and who is mentally competent is able to serve as the personal representative. They don’t have to have any legal or court experience, although they may wish to reach out to a probate and estate planning lawyer in Las Cruces to help handle your affairs.
Note that your personal representative can refuse their duties once the time comes. They may also be difficult to locate or could even have passed on. Because of these possibilities, it is prudent to list two or more personal representative candidates. Be sure to indicate your order of preference to avoid confusion and make it easier for the court to understand your preferred outcome.
In addition to a personal representative, you can also nominate a guardian for your minor children or any other dependents you have when you pass. While your nomination does not guarantee that the party assumes guardianship over your dependents, it can simplify the process. It also makes it clear what your wishes were so that your loved ones can understand who you would ideally have selected.
Just as with your personal representative, you may want to select a few backup guardians in case your first choices are unavailable or end up refusing their responsibility, for whatever reason.
A will can be revoked at any time using a revocation clause in a new will. By default, the creation of a new will carries the assumption that the most recently created document is the one you would prefer to be used during probate. Nevertheless, including a clear revocation clause can clear up ambiguity as to which will should be utilized.
You can also revoke a will using any “revocatory act,” as described by New Mexico law (NM Stat § 45-2-507), which can include “burning, tearing, canceling, obliterating or destroying the will or any part of it” regardless of “whether or not the burn, tear or cancellation touched any of the words on the will.”
Note that when there are two seemingly valid wills and the will created at a later date does not fully dispose of the estate, then an older, non-revoked will that mentions the remaining property may be used to determine who should inherit it.
A will can be modified at any time using a will amendment or codicil. The amending provisions must be signed and witnessed in the exact same manner as the will itself for them to be considered validly executed.
Amending a will can create legal issues, in some cases, so consider referring to a Las Cruces wills lawyer for assistance with updating or revising your existing will.
A trust is a legal arrangement that transfers ownership of property to a new legal entity, known as the trust. The trust is managed by a trustee, who can be the trust’s creator during their lifetime. Every trust has to have at least one beneficiary, who receives property from the trust when it is no longer in effect. There can always be multiple beneficiaries, and they can receive distributions of property at any time, according to the instructions given to the trustee.
You can simplify the process of probate by using a living trust to assume ownership over your property. This property can then automatically transfer to your beneficiaries after your death without having to clear probate first.
The property can also remain in the trust after your death, if that is your wish. A trustee can hold onto it, using it to fund investments that generate income for your beneficiaries. If your goal is to have a trust that persists after your lifetime, you can place most of your property into it during your life. Then, you can use a “pour-over will” provision, which instructs your personal representative to transfer your remaining estate holdings to the trust at the conclusion of probate.
Your will can also include instructions to create a new trust, which is known as a testamentary trust. This trust is created by the personal representative and receives property just as an heir would.
You can use a will to transfer any property, so long as the property is wholly owned by you and the transfer would comply with state and federal laws.
Not all property needs to be transferred using a will, however. Examples of assets that can be transferred without a will or probate include:
A Las Cruces wills lawyer can help you go through strategies to help some of your most valuable assets avoid probate, so reach out to our law firm for assistance if your goal is to speed up property transfers and make life easier for your personal representative.
New Mexico Financial Law can provide you with a knowledgeable and dedicated Las Cruces wills attorney to create a document tailored to you and your unique goals. In addition, we can assist you with other aspects of estate planning, including drafting a power of attorney as part of your advance healthcare directive.
We understand that planning these matters can be unpleasant, but the inconvenience of not having your affairs in order is going to far outweigh the modicum of effort required to create a will. You can rest assured, too, that the Las Cruces wills lawyer you work with is going to be sensitive to your needs and your values. Our sole objective is to leave you with a will and other estate plans that leave behind a world you’d want to see after you are gone.
Make the commitment that can have repercussions that outlast you, helping you protect and provide for your loved ones in ways that help them feel valued. Call our Las Cruces wills law firm at (505) 503-1637 or contact us online to schedule a no-obligation consultation and case review.
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