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A will is a critical legal document, one that impacts much more than the distribution of property after its creator’s death. The outcome of a will’s execution can greatly affect the lives of the people its creator cares about most. With the right intention and attention to detail, a will helps leave others with a sense of closure, perhaps even an opportunity to dramatically turn their own life around.

By the same token, a well-crafted will ensures that no one can be legitimately confused or angry at the eventual outcome after someone’s tragic passing. Plain, specific language and a complete accounting of estate holdings help family members know their loved one’s wishes with clarity, reducing the risks of contests, hurt feelings, or strife between family members, as well as others important to the will-creator’s life.

Know, too, that a will is just one component of a complete estate plan, and options like a trust can make a will more of a formality than a pivotal document. You can refer to the knowledge and experience of the will creation attorneys at New Mexico Financial & Family Law to understand more about what goes into a will, what alternatives you have, and how to create a plan for your end-of-life that will honor the people and ideals that you cared about the most.

Schedule a consultation with our New Mexico probate lawyers today to discuss your plans for the future when you call (505) 503-1637 or contact us online.

What is a Will?

A will, more formally known as a “last will and testament,” outlines several key provisions that come into effect when the creator of the will (also known as the “testator”) passes away.

Components of a will can include:

  • An inventory of all property owned by the testator, comprising their estate
  • The beneficiaries of their property, aka who inherits what
  • The designation of an estate representative or executor, called a “personal representative” in New Mexico, who ensures that the terms of the will are carried out while handling other legal matters pertaining to the estate
  • The identities of at least two witnesses, who must sign the will along with the testator

In addition, a will can lay out terms for who will care for their minor children or any dependents, as well as plans for the care of their pets or any property that’s left behind.

In order for a will to be considered valid in New Mexico, it must be physically printed, signed by the testator, and signed by at least two witnesses to the original signing by the testator. The creator of the will must also have been of sound mind and body, and not under any duress, at the time of the will’s creation and signing.

When Do I Need a Will?

Anyone can (and should!) create a will once they are 18 years old or older, or once they become emancipated as a minor.

While many people may feel that they don’t “need” a will until they have more assets, the truth is that a will provides a tremendous amount of peace of mind, both for you and your heirs. Without one, state intestacy laws require all property to go to the spouse and/or any surviving children. Further, confusion surrounding matters like guardianship or who should act as personal representative can cause stress, or even conflict, after your death.

Will My Will Need to Go Through Probate?

Yes, all wills in New Mexico must be entered into probate and verified by the court before they can be considered valid. As part of the process, the validity of the will is considered, and all claims against the estate are resolved before the will is executed as written. 

Public declarations are made to ensure that all creditor claims and other claims against the estate of the deceased person can be received. This fact makes many details of the will public knowledge, potentially including the contents of the estate and the identities of key beneficiaries.

Because of these concerns, many individuals instead opt to form a trust out of their estate. Trusts can simplify the process of executing their wishes after their death while protecting the privacy of their family and others named in their will, all while avoiding probate.

What Happens If I Die Without a Will in New Mexico?

Anyone who dies without a valid will forces their entire estate, consisting of all their property, into intestacy. As we at New Mexico Financial and Family law often emphasize, everyone has an estate plan.  The question is whether it is one you choose, or one the state has chosen as a default.

An intestate estate has to be distributed to certain people, according to New Mexico law.

NMS §45-2-102 provides that spouses retain all community property, referring to any property jointly owned by the couple prior to the testator’s death. The spouse retains ¼ (25%) of all separate property, and the remaining property is divided evenly among “surviving issue,” meaning the decedent’s children.

If there is no surviving spouse, property can be split evenly among other surviving relatives, including their descendants, parents, aunts and uncles, grandparents, or other groups, per NMS §45-2-103.

Once an estate is intestate, there is no way to prevent inheritances from being distributed in this way. Any further exchange of property, such as if a wife wants to gift some community property to the decedent’s children, must be made on an entirely informal and voluntary basis.

What All Do I Need to Get Started on Creating My Will?

A will has to be thorough. If it leaves anything out, including property or important details like the preferred executor, then it can open up serious legal questions that may need to be resolved through the courts.

When you come to New Mexico Financial & Family Law for a consultation regarding your estate plans, we ask that you take the time to collect all of the following forms of documentation in order to ensure that your will is both complete and comprehensive:

  • All existing will(s), trust(s) or other estate planning documents
  • All Pre-Nuptial or Post-Nuptial Agreements
  • All Martial Settlement Agreements that contain language regarding mandatory life insurance or estate distributions
  • All deeds to properties
  • All property agreements
  • All vehicle titles
  • The most recent statements for all checking accounts, savings accounts, investment accounts
  • Beneficiary and policy limit page for all life insurance and annuity policies
  • Beneficiary and plan balance page for all retirement accounts
  • Any applicable business documents for businesses in which you have an interest
  • Documentation for monies owed to you
  • Any documents related to anticipated inheritances, gifts of large monetary value, or lawsuit judgments
  • Documentation for any other assets not listed above, including pre-existing arrangements intended to continue after the passing of the testator

Does a Will Offer Any Advantages Over a Trust?

Wills provide simplicity and directness in comparison to another legal device often used to handle property after one’s death: a trust. While a trust is a more complete form of planning, with more options for customization and designation of specific terms in which to execute, they also cost more to create and maintain.  In general, we do not recognize a pure, will-based, estate plan unless the estate is very simple.

In addition, the most-beneficial type of trust for estate planning, irrevocable trusts, place the entire holdings of the trust into the care of a single trustee. Not only does the trustee have to be trust-worthy (no pun intended!), but they also have to be willing to handle all of the responsibilities involved. However, a properly drafted trust allows the person who creates the trust to maintain control, and often the ability to revoke the trust altogether.  This will be discussed in a separate section.

All of these factors make wills easier to create and execute, not to mention that they cost less in terms of the money and human effort required.

Trusts offer their own advantages, though, including the ability to bypass probate, shield assets from certain claims, and include specific instructions for matters like charitable donations or the care of dependents, property, or pets after the death of the trust creator. Although trusts cost a little more to set up and maintain, the extra cost can be dwarfed by a wasteful (and public) probate court process which a trust may be able to prevent altogether.

Considering both options — wills and trusts — with the help of an experienced estate planning attorney allows you to choose the legal instrument that is capable of meeting your goals without introducing any unnecessary cost or complexity.

Come to New Mexico Financial & Family Law to Get Your Affairs in Order and Discuss Your Goals During a Consultation

At New Mexico Financial & Family Law, we use a proven process for estate planning that has brought us and our clients successful results, time and time again. We always use a detailed questionnaire to help bring to light specific legal questions and concerns you have, while making sure that every aspect of your estate plan is considered. 

In addition to wills, we can also assist with matters involving guardianship, power of attorney, care during medical incapacitation (a living will), business continuity, and more. Our attorneys are available to answer your questions and provide advice, helping you strive towards success in your goals — for this life, and into the next. 

Our #1 priority is to ensure that the things you care about most are settled well in advance, giving you the peace of mind that comes with knowing that your life and your legacy are in good hands, no matter what happens.

When you are ready to start planning ahead, ensuring that your financial and legal affairs won’t be a burden to your loved ones, reach out to us to schedule a confidential case review. Call our offices today at (505) 503-1637 or contact us online to book a consultation with one of our experienced New Mexico last will and testament lawyers.

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