Santa Fe Estate Planning Lawyer

“Estate planning” means forming a long-term financial and asset strategy — one that is designed to outlast you. After making arrangements with a Santa Fe estate planning lawyer, your affairs can be prepared for nearly any situation that could arise. These preparations can include strategies for retirement, end-of-life planning, incapacity planning, and preparing your estate to enter probate (or avoid it) after your death.

While we can never truly predict the future, we can create documents and plans that mitigate some of the most significant and likely risks. These risks may include your unexpected death or mental incapacitation, or the need for long-term care towards the end of your life. Estate planning should also be prepared for possible economic downturns, enabling your strategy to perform well, whether the economy is booming or in a recession.

In many ways, the biggest beneficiaries of estate planning are the people you leave behind when you go. However, it’s also true that estate planning can benefit you during your lifetime. It also lends you peace of mind, helping you know that your affairs are prepared for whatever life might send your way.

Get help starting on your estate plans or making strategic updates to existing plans when you call our Santa Fe estate planning law firm. Call us at (505) 503-1637 or contact us online to schedule a no-obligation consultation today.

What Can I Accomplish With a Santa Fe Estate Planning Attorney?

Everyone’s situation is different, so no two estate plans will look alike. You may also have unique factors involved in your estate plan, such as a blended family, a closely held company, or an adult dependent with disabilities. 

Whatever your situation, our estate planning law firm in Santa Fe is here to help. Some of the ways we can help you make plans for your unique situation include:

• Ensuring you have an up-to-date will, along with preparations to make the probate process and final handling of your estate as straightforward as possible.
• Using a living trust and other strategies to minimize the size of your probated estate.
• Preparing yourself and your loved ones for your possible incapacitation using a financial power of attorney and an advance healthcare directive.
• Mitigating the effects of creditor claims on your estate — or on your eventual beneficiaries — using asset protection strategies like an irrevocable trust.
• Weighing your options and selecting the best strategies for succession planning to facilitate the transfer of a family business, a large real estate portfolio, or other complex assets to your heirs.
• Helping your loved ones (or a trusted professional) understand their responsibilities for estate and trust administration.
• Making arrangements to support a charitable cause and build a legacy.
• Reducing your vulnerability to scams or financial abuse as you age.
• Placing assets and income into trusts to help you or a loved one avoid being disqualified for programs like Medicaid and Supplemental Security Income (SSI).
• Leveraging irrevocable trusts to take advantage of features like tax savings, increased estate liquidity, or the preservation of assets for direct descendants (in case a surviving spouse remarries).

To execute these strategies, you work with an attorney in Santa Fe to create any of the following estate planning documents:

• Last will and testament.
• Financial power of attorney.
• Advance healthcare directive (includes a medical power of attorney and a living will).
• Living trust.
• Testamentary trust.
• Specialized irrevocable trust (e.g., Medicaid trust, asset protection trust, credit shelter trust).
• Account beneficiary and payable/transfer-on-death designations.
• Joint tenancy with rights of survivorship (JTWROS) property titles.
• Life insurance policy.
• Guardianship designations (can be included in a will).
• Estate tax and debt strategies.

You can receive personalized guidance for deciding on the right documents for your estate plan, along with getting assistance for their creation, by reaching out to an experienced New Mexico estate planning law firm.

Creating a Will in Santa Fe

Your will is a practically essential estate planning document. It is the only document that can be used to legally enforce your wishes when it comes time for your estate to distribute assets to heirs.

A will also allows you to nominate your choice of personal representative (sometimes called an executor or estate administrator). This person submits your will into probate, which gives them the legal authority to carry out your wishes for property distribution and inheritance.

If you have minor children or adult dependents, your will can designate your preference of a guardian to take your place. Designating someone in your will gives your choice a quicker path to becoming a legal guardian, especially if they are a minor. Normally, a child has to live with an adult caregiver for 90 days before the person can file a petition for guardianship. If the child’s biological or adoptive parents nominate a person in writing, including in their will, this 90-day requirement is waived.

Reach out to a Santa Fe estate planning lawyer to make sure your will is properly worded and executed so that your wishes can be legally enforced.

What If I Die Without a Will?

When someone dies without a valid will, their estate is “intestate.” Intestacy means that state laws automatically decide who inherits the deceased person’s property. 

In these cases, the court appoints a personal representative, showing preference toward surviving spouses and other individuals with close relational ties to the decedent. A creditor to the estate or another “interested party” can come forth after 45 days, if no other person wishes to serve as personal representative.

Once appointed, the personal representative is forced to distribute property according to New Mexico’s intestate succession statutes. The statutes state the following:

• If there is a surviving spouse and surviving descendants, the spouse inherits all community property and ¼ of the decedent’s separate property, and the surviving descendants split the remaining ¾ of the separate property.
• If there are surviving descendants but no surviving spouse, then the descendants inherit all property, split evenly among them.
• If there is neither a surviving spouse nor any surviving direct descendants, then the following individuals may inherit the entire estate, split evenly among all individuals in the category:
  • Parents
  • Siblings
  • Grandparents
  • Other next-of-kin

These arrangements are undesirable for most people. They force your personal representative’s hand, taking away your ability to control who inherits what. 

Accordingly, it is highly recommended that you seek counsel from a Santa Fe will attorney. They can help you put together a basic will, review your other estate plans, and keep your plans up-to-date in response to any significant life changes.

What Can I Do to Reduce the Cost and Complexity of Santa Fe Probate With the Help of an Estate Planning Attorney?

Most of your titled assets and the other property in your name become part of your probated estate when you die. However, certain assets can be transferred without having to enter probate, including:

• Community property owned jointly with a spouse
• Accounts with beneficiary designations, such as retirement and brokerage accounts
• Accounts with payable-on-death and transfer-on-death designations
• Property titled under joint tenancy with rights of survivorship (JTWROS)
• Property and accounts that have been placed into a living trust before the decedent’s death
• Life insurance policy proceeds

Speak to an estate planning attorney to discuss other ways you can prepare your personal representative for probate court in Santa Fe. For example, you can ensure that your probated estate includes enough liquidity to easily cover your last year’s income taxes, as well as your estate’s administration fees.

You can also direct your personal representative to consult with a probate lawyer in Santa Fe. This attorney can provide guidance and step-by-step recommendations, especially if they worked with the same law firm that assisted you with developing your estate plan.

Preparing for Incapacitation as Part of Your Estate Plan

As we age, our risk for a mentally debilitating condition can rise dramatically. Consider that around 25% of hospitalized patients have dementia, and 40% of acute medical patients older than 75 are affected by delirium. 

Incapacitation can result from a chronic condition like Alzheimer’s disease. Or, it could arise as a side-effect of an acute medical condition, such as a severe infection. A car accident or fall could also result in a traumatic brain injury, causing the patient to fall unconscious or suffer from diminished mental capacity.

Whether temporary or permanent, incapacitation means that we no longer have the faculties to make decisions for ourselves. We are also unable to adequately communicate what our wishes would be.

To prepare for these situations, many Santa Fe estate planning lawyers recommend the use of an advance healthcare directive and a financial power of attorney.

What Is an Advance Healthcare Directive?

An advance healthcare directive contains multiple documents:

• Power of attorney for healthcare — Also sometimes called a medical power of attorney, this document names a healthcare proxy to make key decisions on your behalf while you are incapacitated.

• Instructions for care (AKA, a living will) — This document records your wishes for medical treatment after you have been incapacitated, including what life-prolonging measures you would want. Your healthcare proxy and care teams are legally obligated to follow these instructions.
• Primary care physician designation — This declaration requires your care team to consult with this specific physician before coming to a conclusion regarding your mental capacity.

An advance healthcare directive documents some of the most impactful decisions you’ll make in your life. Collectively, your choices could affect your comfort level, dignity, and the likelihood of your recovery while you are in a vulnerable medical state. 

By consulting with a Santa Fe estate planning lawyer, you can review your options for life-saving care, organ donation, and other important decisions. You can then settle on the choices that align with your personal values, beliefs, and ethics.

Providing your loved ones with these instructions — and designating an official healthcare proxy — can reduce their levels of stress and uncertainty during a traumatic time. It can also reduce the risk that they will have to obtain an order for guardianship or conservatorship to help manage your care.

What Is a Financial Power of Attorney?

A financial power of attorney is a document that designates an individual as your financial agent (sometimes called your attorney-in-fact). This designation gives your agent the authority to handle your accounts and conduct other transactions on your behalf. If you use a durable financial power of attorney, this agent can handle these affairs even after you have been incapacitated.

Your power of attorney can restrict the types of transactions your agent can conduct, as well as the specific accounts they have permission to access. Use your best judgment to balance your agent’s ability to handle critical business with the risks that can come with unrestricted access. 

You can discuss your goals, concerns, and the situations you want to prepare for with a lawyer who has experience with financial power of attorney in Santa Fe. They can make personalized recommendations with respect to your unique financial and family situation.

Using Trusts as an Estate Planning Strategy

All trusts take property out of your name and transfer it into the trust’s ownership. A trustee manages the trust on your behalf. Their job is to ensure that the trust follows the rules you set and that they make the intended distributions to your chosen beneficiaries.

There are many different types of trusts. Each can provide benefits that may be essential for the proper execution and success of your estate planning strategy. These trusts generally fall into one of four primary categories:

• Revocable living trusts — These trusts offer convenience, since they can be revoked or modified at any time. The person who creates the trust is also allowed to serve as trustee. These trusts are most often used to simplify probate, hasten transfers to heirs after the grantor’s death, and make the management of complex asset portfolios more straightforward.

• Irrevocable living trusts — These trusts cannot be changed or revoked under most circumstances. In exchange, they offer specialized capabilities, which can potentially include estate tax reduction, asset protection, generation-skipping transfer tax (GSTT) reduction, or the ability to maintain wealth across generations. Medicaid trusts, for example, may allow someone to qualify for long-term care and support benefits without risking their home or assets to estate recovery.

• Special needs trusts — These trusts are created to help support an adult with special needs without causing them to go over income and resource limits for programs like Medicaid or Supplemental Security Income (SSI). Its assets can pay for qualified expenses not otherwise covered by the individual’s benefits program, such as the cost of travel, education, entertainment, and clothing.
• Testamentary trusts — These are irrevocable trusts formed during probate through a provision in a will. They can be structured in many different ways, including as a charitable trust or a bypass trust.

Trusts can be a convenient way to preserve assets, simplify probate, and accomplish other goals, but they must be purpose-built for each situation. Refer to an experienced Santa Fe trust attorney for guidance with structuring, funding, and operating your trust in a way that accounts for your unique goals and finances.

Get Help From an Experienced Santa Fe Estate Planning Law Firm

Whether you want to handle your estate through a combination of wills and trusts or you are seeking advice for incapacity planning, New Mexico Financial Law is ready to assist you. 

Our estate planning law firm in Santa Fe cares deeply about your ability to prepare for the future, including your death or possible incapacitation. With our help, you can develop a one-of-a-kind estate plan that ensures you are ready for nearly any situation that can arise.

Get peace of mind — and get help through all the steps of will creation, trust formation, power of attorney drafting, and more — with a knowledgeable Santa Fe estate planning lawyer at your side. Call our firm at (505) 503-1637 to schedule a no-obligation consultation today.