New Mexico Formal Will Lawyer

A “formal will” refers to any will that is considered valid, according to New Mexico law. For a will to be considered valid in New Mexico, it must be a physical paper copy.

The will must be signed by the testator in front of two non-interested party witnesses, who will then sign the will themselves.

As the will creator (called a testator), you have a lot of flexibility in what you include in the will. It can include any instructions you wish to leave to the personal representative of your estate.

Your will can also be created in tandem with a living will, powers of attorney, transfer on death (TOD) assets, and potentially even a trust, forming the basis of a well-rounded and comprehensive estate plan.

Discuss your end-of-life plans — as well as your contingency plans in case you are incapacitated — by contacting a New Mexico formal will lawyer. An attorney can help you review all of your primary areas of concern.

Together, you can then begin drafting a will that leaves you feeling confident about the legacy you leave behind.

Schedule a no-obligation consultation and estate plan review with a New Mexico formal will lawyer today when you call New Mexico Financial & Family Law at 505-503-1637 or contact us online.

How a New Mexico Formal Will Attorney Helps You Get Everything Right

In many ways, creating a will has never been easier.

However, be aware that “Do It Yourself” options can lead to unintended consequences when they are used without the input of an experienced New Mexico formal will attorney.

Referring to an attorney is especially important if you intend to leave instructions for matters like guardianship, trust formation, or complex inheritance arrangements.

Consult with New Mexico Financial & Family Law to ensure your wishes are clearly stated, effectively organized, and as easy as possible for your estate’s personal representative to carry out.

Your will drafting appointment always begins with a thorough review of your plans for the future and any important matters you have been thinking about.

Our New Mexico formal will lawyers can review your current financial portfolio along with any property and other assets you intend to gift to your heirs. We can also go over your current life situation, including whether you have any minors or adult dependents who will need guardianship.

If you intend to have more complex arrangements for distributing your life’s possessions, then we can go over your options for creating a trust or using other estate planning mechanisms that can work in your favor.

Our goal is always to be as comprehensive as possible. We help you look out for any risks that could affect your plans while finding opportunities to draft a will that leaves your heirs feeling happy and satisfied.

What Is Needed for a Formal Will in New Mexico?

New Mexico law (NM Stat § 45-2-502) states that the following conditions are required for a will to be considered valid:

• The will must be “in writing,” which refers to a physical copy that must be printed, typed, or otherwise written in a durable form.
• The will must be signed by the testator through their own volition while they are of sound mind and capable of understanding all of the provisions the will contains. Alternatively, the will can be signed by another party in the testator’s physical presence at their direction, provided they are conscious and possess their full mental faculties.
• The will must be signed by at least two adult individuals of sound mind who witnessed the testator’s original signing “in the presence of the testator and of each other.”

Mental Capacity, Undue Influence, and New Mexico Formal Wills

One key provision of the New Mexico law regarding formal wills is that the creator of the will has to have mental capacity (see NM Stat § 45-3-407).

Capacity means that the testator is mentally capable of making sound decisions and understanding what everything in their will means.

Taking this provision to the logical extreme, the testator has to be conscious. They cannot “sign” the will by having someone move a pen in their hand while they are unconscious.

From a more grounded sense, the capacity requirement means that the testator has to have enough mental abilities to be able to make major decisions regarding how their life’s assets will be distributed.

Proving capacity, or incapacity, may involve hospital records, witness statements from people close to the testator, professional opinions, and evidence regarding their communications and apparent ability to process complex thoughts at the time of their will’s creation.

Importantly, however, people’s autonomy, dignity and ability to control their own affairs is generally presumed in New Mexico (and likely in all other states).  This means that the obligation to prove lack of capacity generally falls on the person seeking to invalidate the will.  This can be difficult without medical records and a qualified expert.

Another important provision to follow is that someone must not have leveraged undue influence upon the testator to get them to create and sign a will for their own personal gain.

Sometimes, close relatives or people helping the testator during their later years, such as nurses or attorneys, may start manipulating the testator. They may convince the testator to act against the best interests of their presumed heirs in favor of the influencer.

Similarly, the will cannot contain clear mistakes or be the product of fraud, misrepresentation, or duress.

If any of the above provisions are violated, then the will may be declared invalid by the courts.

What Is Contained in a New Mexico Formal Will?

A last will and testament, informally known as a “will,” can contain anything you wish.

More specifically, though, a will should contain all of the following (unless you feel it is irrelevant to your current situation, your estate, or the needs of your dependents):

• Name a personal representative of your estate (sometimes called an executor, agent, or administrator) and possible successor representatives if one is unable or unwilling to serve.
• Name your preferred guardians for any minor children or dependents (speak to a New Mexico formal will attorney to handle guardianship matters more thoroughly).
• List the possessions that form your estate, including any real property and other personal items you wish to distribute.
• Name beneficiaries, along with what assets they should inherit through your will.
• Provide instructions for handling any sensitive accounts, including social media accounts, log-in credentials, etc.
• Name beneficiaries who would typically receive an inheritance (i.e., children) but who you wish to disinherit — these provisions can prevent confusion or contested probate.
• Form testamentary trusts or distribute some (or all) of the contents of your estate into a currently existing trust (i.e., a “pour over” bequest).

Community Property and Wills

Note that you are only legally allowed to distribute your interest in property, which may be less than the whole amount of the property, whether the property be a bank account or real property or other personal property.

If you are married, nearly all the property that you own is considered community property, meaning it is jointly owned with your spouse. This property is automatically inherited by the surviving spouse if there is no will, but a will could potentially transfer that spouses one-half interest in community property. Compare:  NMSA § 45-2-102. (entire community property is awarded to surviving spouse if no will) with NMSA § 45-2-807 (half of the community property can be disposed of by the married testator).

You may have specific assets that could be regarded as separate property, especially if care was taken to designate it as such, that could be distributed upon your death without needing the consent of your spouse.

However, since most property automatically becomes the property of your spouse at the time of your death, if you die without a will. You should speak to a New Mexico formal will attorney if you would like to distribute part of your community property separately through your will.

Is There Such a Thing as an Informal Will in New Mexico?

No. All wills have to satisfy the minimum provisions laid out in the New Mexico laws outlined above. Any will that does not satisfy these provisions is considered invalid. That includes wills that are stored in electronic form but that are not signed and witnessed according to proper New Mexico procedure.

If there is an earlier, valid version of a will, it can only be entered into probate if a newer valid copy does not exist — barring any objections from the other parties with interest in the will (i.e., beneficiaries and creditors).

If there is no valid copy of the will, the estate is considered intestate, and the property will be inherited entirely by your next of kin.

What if There Are Multiple Valid Formal Wills?

In the event that multiple formal wills may be considered valid, the will that is dated most recently will take precedence over any older wills.

This provision is why it is so important to clearly date the copy of the will. Consider the risk that a previous copy may be erroneously entered into probate in advance of the more recent one.

It is also a good idea to include language in your most recent will that formally revokes the older wills, just to be certain that there is no confusion.

There is another provision (NM Stat § 45-2-507) stating that if two seemingly valid wills exist, and one will does not completely dispose of all the property in the estate — meaning that there is some property that has no clear heir — then there a presumption is made that the most-recent formal will that does mention the certain property comes into effect.

For example, if there are two competing wills that list contradictory heirs of a vacation home, then the most recent will’s wishes must be honored during probate.

However, if the most recent will does not mention the vacation home but a less recent one does, and there is no language revoking the provisions of that will, then the older will dictates who gets the property.

Can a Handwritten Will Be Considered a Formal Will in New Mexico?

Yes, a will can be handwritten. However, the testator should use highly legible penmanship and avoid any smudging or errant marks that could cause confusion regarding the intentions of the will.

Further, the will should ideally be written in archival ink (and definitely not pencil or other writing utensils that are impermanent) so that the text of the will does not fade and can be clearly read.

As with other wills, it should be clearly dated, signed by the testator, and signed by two witnesses, all in one another’s company, in accordance with New Mexico law.

Who Can Act as a Witness to a Will?

New Mexico law does not provide any limitations on who may witness a will. However, it is best to consider all of the following:

• All parties have to be in one another’s physical presence while the will is signed.
• All parties must be of the age of majority (18 or older).
• All parties must be of sound mind and have the capacity to understand the legal gravity of what is taking place.
• An attorney who helped create the will could potentially be seen as a party with influence on the will’s contents, so another individual (even another attorney) may be a better choice for witnessing the will.
• The testator should consider having the will witnessed by a party who is not privy to any of their estate (i.e., a non-heir) and who otherwise does not have a direct interest in the proceedings of the will or the disposition of the testator’s estate.
• The testator should try to find someone to witness the will who is likely to outlive them and retain capacity so that if they are asked to verify their witnessing of the will during probate, they would be available to do so.

Can I Have an Electronic Will or Video Will in New Mexico?

You are welcome to supplement your will with any additional materials you feel could be beneficial to the understanding of the will and the comfort of your heirs.

However, only a written will is considered a valid, formal will in New Mexico. Further, know that any information contained in the supplement cannot supersede the language in the will.

Accordingly, take care to verify that the information you represent in any supplementary materials accurately reflects the information in the will. Any discrepancies could cause confusion — or even conflict — among your heirs.

Refer to a New Mexico formal will attorney if you wish to include materials in addition to your will, such as a recording or an easily shared digital copy, to avoid potential complications.

Ensure Your Wishes Are Known and Executable With a New Mexico Formal Will Law Firm

The criteria needed for a formal will may seem simple, but in reality, there are many possible challenges or complications that could arise when trying to execute a will on your own. Refer to our New Mexico formal will law firm to ensure that your will is complete, executable, and capable of avoiding common risks or complications.

Schedule a no-obligation case review to discuss your formal will plans with New Mexico Financial & Family Law today when you call us at 505-503-1637 or contact us online.