New Mexico Deathbed Will Lawyer

Many times, individuals in a failing state of health will want to have their last wishes recorded, including their preferences for which assets should go to what heir. The document that is created is commonly referred to as a “deathbed will.”

A deathbed will can be valid so long as the creator of the will (the testator) follows New Mexico’s laws for signing the will and then having the will witnessed and signed by two other parties. The testator may also want to take care to have the will notarized since this procedure can make it easier to prove that they were of sound mind and had the capacity to understand what they were doing.

While there may be an understandable time constraint involved in creating a deathbed will, the testator and their family should take precautions to ensure that the will is properly created and signed, according to New Mexico law. A New Mexico deathbed will lawyer can help you ensure that any will you create is considered valid and admissible into probate.

By the same token, if you are a concerned family member — or a party who otherwise has interests in the disposition of a testator’s estate — you can challenge a will you believe is invalid with the help of a New Mexico deathbed will lawyer.

Get answers to your questions and learn more about state laws for wills when you call New Mexico Financial & Family Law at 505-503-1637 or contact us online.

What to Consider Before Contacting a New Mexico Deathbed Will Attorney

Given the urgency of any situation requiring a deathbed will, it is best to contact a New Mexico deathbed will attorney as soon as you can. This recommendation holds true whether you (or a close loved one) intend to create a deathbed will or if there is contested probate for an estate in which you have a legal interest.

Time Is of the Essence When Creating a Deathbed Will With the Help of a New Mexico Attorney

There are many considerations involved in the creation of a deathbed will. While the creator of the will understandably wants to hurry the process along, it is important to be prudent, consider the contents of the will, and prepare for any natural objections that may emerge during probate.

When you reach out to a New Mexico deathbed will lawyer, they can help you with the following tasks:

• Thoroughly review your estate contents to ensure that the new will completely disposes of every single asset, meaning it entirely accounts for these assets and clearly describes what goes to whom.
• Help you thoroughly revoke any previous wills if your intention is for the new will to override them.
• Help you make decisions when you want the new will to only make partial changes to an old one, especially when it comes to what document will apply to what asset or what set of instructions.
• Help you designate a trustworthy personal representative of your estate, as well as a possible succession of preferred personal representatives.
• Ensure that the will is properly signed by you (or the testator) and witnessed, according to New Mexico law.
• Help you prove capacity and/or have the will notarized so as to expedite probate and avoid common wats to contest the will’s validity.
• Manage any other aspects of estate planning, including possible testamentary trusts, pour-over provisions for existing living trusts, guardianship, and powers of attorney considerations.
• Establish contact with your estate’s personal representative so we can help them manage any will disputes in the event they arise.

Contacting New Mexico Financial & Family Law is the first step towards ensuring that your deathbed will is considered valid and that it takes care of everything you hoped to address. We can also review an existing deathbed will and make recommendations on the next steps, especially if the testator is still alive and has retained their mental capacity.

A New Mexico Deathbed Will Lawyer Can Help if You Have Concerns About Validity

A will’s validity could be in considerable jeopardy if it was created as a deathbed will. A lot of important steps could have potentially been skipped, and there may be lingering questions about undue influence or the testator’s capacity.

Refer to the section “What Are the Objections That Could Contest a Deathbed Will?” below to learn more about common reasons that a will could be contested, and then contact our New Mexico deathbed will attorneys to help you assess the situation and determine the best path forward given your options.

What Is Required for a Deathbed Will to Be Considered Valid in New Mexico?

In order for a New Mexico deathbed will to be considered valid, it must satisfy the following criteria (per NM Stat § 45-2-502):

• The will is “written,” meaning that it is a physical copy.
• The will was created by an individual over the age of 18 who has the capacity to understand what the will says and how the will affects their estate.
• The will was signed by the individual, or it was signed at the direction of the individual in their presence while they had the capacity to legitimately direct and witness the signing.
• The signing of the will was witnessed by two other adult parties with capacity, who then signed the will in each other’s presence and in the presence of the testator.

These criteria are relatively simple to satisfy. That simplicity means that someone in a failing state of health could still potentially create a deathbed will in a hurry while still ensuring that the will is properly executed.

Does a New Mexico Deathbed Will Need to Be Notarized to Be Considered Valid?

No. Notarization of a will is not required in the state of New Mexico. However, notarization can help the will become “self-proving.”

Normally, during probate, the personal representative of the testator’s estate has to contact the two witnesses who signed the will to verify their signatures and confirm that all of the signings occurred in the testator’s presence. This process is described as “proving” the will.

To make the will self-proving, a notary needs the testator and their two witnesses to sign an affidavit (see NM Stat §45-2-504). By signing the affidavit, the testator denotes that they clearly understood all of the provisions in the will, signed it of their own volition (not under duress or undue influence), and are assured of the fact that the will accurately expresses their wishes.

How Does a Deathbed Will Affect Other Pre-existing Wills?

A deathbed will technically nullifies any other pre-existing will, provided that it completely disposes of the testator’s estate — meaning that the estate is fully accounted for within the will’s language (see NM Stat § 45-2-507).

However, if the will does not fully address the estate, it is presumed to add onto earlier versions of the will that do reference the holdings not mentioned in the newer will. For example, if an investment account is not mentioned by the new will, then the most recent valid will mentioning that investment for instructions on who should inherit that account.

Someone wishing to create a deathbed will can also instead create a document adding onto a pre-existing will to update that will, including their most recent wishes and instructions. This addendum is referred to as a codicil, and it must be signed and witnessed in the same manner as a valid will in New Mexico.

If the testator wishes to completely invalidate any previous wills, they can do so through any of the following actions (per NM Stat § 45-2-507).

• Including a clause or provision in the deathbed will formally stating that all previous wills have been revoked.
• Performing a “revocatory act,” which can include “burning, tearing, canceling, obliterating or destroying the will or any part of it,” regardless of whether the act actually causes physical damage that touches the words of the will itself.

Can a Deathbed Will Be an Oral Will in New Mexico?

No. Per New Mexico law (NM Stat § 45-2-502), a will must be “written.”

Written refers to a physical copy of the will, regardless of whether it is printed out or handwritten. As stated earlier, the document must also be signed and witnessed by two parties.

If a testator wishes to dictate a new will, they can do so and then sign it or direct it to be signed in front of their two witnesses.

A will executed in another state, country, or territory that would be considered valid could, however, be admitted under New Mexico’s foreign wills statute (NM Stat § 45-3-409). Since some states allow for oral deathbed wills, the personal representative could potentially enter the will into probate once it was certified in the proper jurisdiction where the will was originally created.

What Are the Objections That Could Contest a Deathbed Will?

A deathbed will may be contested on multiple grounds. An interested party (including creditors, beneficiaries of the will, and relatives of the decedent) could contest the will in any of the following circumstances:

• Improper execution — If the will was not properly signed and witnessed, then it will be declared invalid during probate.
• Testamentary capacity — The testator must be mentally capable of understanding the will, all of its contents, and how it determines who inherits each part of their estate. Deathbed wills have a high risk of being challenged on the grounds of lack of testamentary capacity because terminal patients often exhibit delirium as a result of their condition and their ailing functions.
• Undue influence — To prove undue influence, someone submitting a will contests must demonstrate that someone convinced the testator to make decisions that they otherwise would not have made without being manipulated. Often, the influencer is someone who controls the testator’s daily living situation or finances, such as a caretaker, distant relative, attorney, or new love interest. Individuals contesting the will can argue that undue influence occurred even if the testator appeared to create and sign a will of their own free will, so long as they can prove that unusual circumstances led to a will that the testator would not have created otherwise.
• Coercion and Duress — If the testator was forced to sign the will because of a threat or other form of coercion, then the will may be declared invalid.
• Fraud — A will may be invalidated if the testator created the will under false assumptions. Most often, this occurs when the testator was the victim of deceit or misrepresentation by any individual in relation to their estate or their personal, legal, and financial interests.
• Unenforceability — Some provisions or bequests within the will may be unenforceable because they contradict state or federal law.

Who Can Contest a Deathbed Will in New Mexico?

Any “interested person” has the ability to contest a deathbed will.

Per New Mexico law (NM Stat § 45-1-201), an interested person can include “heirs, devisees, children, spouses, creditors, beneficiaries and any others having a property right in or claim against a trust estate or the estate of a decedent, a minor protected person or an incapacitated person” or a representative of these individuals (i.e., their attorney).

An interested person can also be someone who would be presumed to have priority as the personal representative of the estate who was skipped over in favor of another party.

These individuals can lodge their challenge in probate court, and they have the burden of proof for any invalidating reasons that they allege.

What Happens if a Deathbed Will Contest Succeeds?

If a party is successfully able to contest a deathbed will, then the most recent valid copy of the will comes into effect. In cases where there is no other valid copy of a will, then the estate becomes intestate.

Disinheritances and Deathbed Wills

A deathbed will may be used to revise beneficiaries, meaning that some individuals may be “cut out” of the will and left without an inheritance. However, New Mexico laws and previous court rulings can cast heavy scrutiny on wills that unexpectedly leave out presumed heirs, especially children.

To reduce the risk that a deathbed will could be contested because of undue influence, unenforceability, or any other grounds, it should clearly explain the reasons for removing heirs in a disinheritance clause.

Deathbed Wills and Trusts

A deathbed will can be used to create a testamentary trust or “pour over” some or all of the estate’s contents into a pre-existing living trust.

Refer to a New Mexico deathbed will lawyer to ensure that any arrangements can be legally executed and that they satisfy the best interests of the testator and their intended beneficiaries.

Perform Necessary Due Diligence With the Help of Our New Mexico Deathbed Law Firm

Deathbed wills can be challenging to create, and they may also lead to all sorts of complexities. It is best to refer to a New Mexico deathbed will lawyer any time you have concerns about the execution of a deathbed will and whether there is a risk of someone lodging a challenge to its validity.

Schedule a no-obligation consultation and estate plan review with New Mexico Financial & Family Law today to get help with your deathbed will when you call 505-503-1637 or contact us online.