New Mexico Handwritten Will Lawyer

Handwritten wills are legal in New Mexico, but only when they are properly attested and executed. Even if the will is in the will creator’s (testator’s) own handwriting, they must still sign the document in front of two witnesses, who must then sign the document in the presence of the testator and one another.

Refer to a New Mexico handwritten will lawyer for more guidance on what you can include in the will and how to avoid likely contests to it after your death. If you are a personal representative of an estate or an interested party concerned about the validity of a handwritten will, you can also refer to an attorney for assistance.

The attorneys at New Mexico Financial & Family Law have been helping individuals and families in our state for decades. Schedule a no-obligation will and estate plan review with an experienced New Mexico handwritten will attorney today when you call us at 505-503-1637 or contact us online.

How to Prepare for an Appointment With a New Mexico Handwritten Will Attorney

Whether you are the testator or the personal representative of an estate, you should bring all of the following to your appointment when meeting with a New Mexico handwritten will lawyer:

• A list of all personal property, accounts, and real property in the estate
• A copy of the relevant life insurance policy
• Statements from any retirement accounts
• Any information on outstanding debts, including loans and credit balances
• A copy of the most recent handwritten will
• A list of beneficiaries and other immediate family members

Come prepared to ask questions and get recommendations with respect to your financial situation and your goals for your estate. If you are a personal representative of the estate, a New Mexico handwritten will attorney can help you prepare for probate, including any possible challenges to the will’s validity.

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

According to New Mexico law (NM Stat § 45-2-502), every valid will must meet the following requirements:

• The will must be “in writing,” which refers to any physical copy, including handwritten wills.
• The will must be created by an individual over age 18 who has the ability to understand that they are making a will and how it affects the disposition of their estate.
• The will must be signed by the testator or signed at their direction while they have the capacity to give such instructions.
• The signing of the will by the testator must be witnessed by two other adult individuals with the capacity to understand that they are witnessing a will, and they must then sign the will themselves, in one another’s presence.

None of these instructions prevent the use of handwritten wills. However, there are a number of things to consider before relying on a handwritten will to control the distribution of your estate.

Why a Handwritten Will May Not Be Your Best Option

While there is something to be said about the timeless appeal of a handwritten document, consider that writing a single draft of a will by hand is a lot of work. If you ever wanted to change the document (which would need to be executed and attested properly again), then you would have to rewrite the document once more in its entirety.

Also, consider the fact that some people may have difficulty reading all of your handwriting. It could be possible that a single confusing clause could throw the entire will’s validity into question.

Remember, too, that you need to keep that hard copy of the will available. If anything should happen that damages it, it could be considered an intentional “revocatory act,” even if none of the words of the will are damaged in any way.

Refer to a New Mexico handwritten will lawyer for further guidance. If a handwritten will is the only option you prefer, an attorney can still provide invaluable assistance during the drafting phase.

They can recommend specific clauses to include so that there is little room for misinterpretation. They can also help you avoid common challenges or setbacks to using the will in probate, such as by documenting your testamentary capacity, including an attestation clause, and potentially having the will notarized so that witnesses do not need to be contacted.

What Are the Grounds for Contesting a Handwritten Will?

Any “interested party” can contest a will on several possible grounds. Interested parties include anyone named in the will, anyone named in previous versions of the will, relatives of the testator who would normally inherit some or all of the estate if it were intestate, and creditors.

Anyone wishing to contest the will must submit a complaint within six months of notice being sent out that the will has entered probate. If the will was informally probated, then the contestant needs to submit their complaint within twelve months of probate’s conclusion or three years of the decedent’s death — whichever is later.

Grounds to contest a handwritten will in New Mexico include:

• Unenforceability — Normally, unenforceable wills involve clauses that cannot be legally carried out, such as an outdated will that refers to the now-separate property of a spouse who has since divorced the testator. In the case of handwritten wills, the will may be considered unenforceable if the handwriting is illegible or clauses appear to contradict one another in a way that makes the entire document difficult to interpret.
• Improper Execution — The execution of the will refers to the testator signing the will in front of two witnesses and having those two witnesses then sign the will in each other’s presence. All of these acts must occur in one period, and if they did not, then the will may be declared invalid.
• Lack of testamentary capacity — To have testamentary capacity, the testator must be mentally aware and capable of understanding their will, its instructions, and its effects on their estate. Someone can dispute capacity by pointing to cognitive conditions associated with dementia, psychosis, or chronic substance abuse. Capacity can also be challenged if the testator does not understand the full extent of their estate or how the will dictates who receives what parts of it when they die.
• Coercion and undue influence — Undue influence is exerted when someone who has a close relationship with the testator convinces them to favor the influencer excessively in their will. An individual can also coerce the testator by threatening to withhold care or to enact some other form of punishment if the testator does not change their will to reflect the influencer’s wishes.
• Fraud, misrepresentation — If someone defrauded the testator by misrepresenting their expertise or by purposefully confusing or deceiving them in regards to the assets mentioned in the will and how they are going to be distributed, then the will may be declared invalid.
• Intention to revoke the will — If the testator committed a revocatory act, such as “burning, tearing, canceling, obliterating or destroying the will or any part of it,” (NM Stat § 45-2-507), then their action could be interpreted as an effort to revoke the will and all of its directions.

What Happens When a Contested Handwritten Will Is Declared Invalid?

If another properly executed version of the will is available, the most recent version comes into effect.

However, if no other version exists, then the estate becomes intestate. Intestate estates are distributed automatically to spouses, children, and other next-of-kin, depending on the family lineage of the decedent and whether certain individuals survive the testator.

How Can I Reduce the Risk of a Contested Probate if I Want to Use a Handwritten Will?

If it is your intention to use a handwritten will and you want to avoid having the will contested, you can take the following precautions:

• Prepare a draft of your will to be reviewed by an attorney, and be ready to revise it based on their recommendations.
• Clearly date the will on each page, and have each page clearly numbered.
• Ensure that the will is drafted in archival ink — DO NOT use pencil or other marking utensils that may fade.
• Avoid stray marks or blotches.
• Try to keep text inside comfortable margins to avoid crowding.
• Try to maintain even spacing between every line.
• Have several non-interested parties review the will for legibility.
• Submit to cognitive testing immediately prior to executing the will, and have the person performing the test sign an affidavit to accompany the will.
• Choose two witnesses without an interest in the disposition of your estate and have them sign a separate attestation clause.
• Consider having the will notarized, making it “self-proving,” which negates the need to have the witnesses contacted during probate.
• Ensure that, if you update the will, you include a revocation clause and clearly date the new copy on all of its pages.

Can I Create a Handwritten Codicil as an Addendum to My Will?

Yes. A brief or partial update to your will — known as a codicil — has to follow all of the rules for a valid will in New Mexico. If it is properly signed and witnessed, it can be admitted into probate, even if it is handwritten.

Does New Mexico Recognize Holographic Wills?

A “holographic will” typically refers to a will that is written in the testator’s own handwriting. Some states recognize these wills under certain circumstances, even if they are not properly signed, witnessed, and executed.

New Mexico does not recognize a handwritten will unless it has been properly executed. However, if the will was created in another state that does recognize the will’s validity, it may potentially be entered into probate and considered valid, according to New Mexico’s foreign wills statute (NM Stat § 45-3-409)

What Property Should I Bequeath Through My Handwritten Will?

While they have many versatile capabilities, a handwritten will is perhaps best suited for transfers of personal property. Examples of personal property include clothing, jewelry, keepsakes, heirlooms, furniture, or other items of significant personal (but perhaps not monetary) value.

While a handwritten will can be used to legally transfer real property, it may be scrutinized more heavily than a typed-up contract.

A will can also be useful as a catch-all for parts of a testator’s estate that they do not want to be distributed automatically through intestate succession.

For example, the testator can leave a clause in their will stating that “any additional vehicles not described herein that remain part of my estate will go to my neighbor,” with the neighbor’s name clearly stated.

Keep in mind that a will does not need to contain instructions regarding any accounts or real property that happen to have a transfer on death (TOD) or payable on death (POD) designation. Instead, the named beneficiary (or a succession of beneficiaries) automatically receives their transfer or payment without the need for the assets to be probated.

Jointly held properties also do not need to be described in a will since ownership can automatically transfer to the surviving party (or parties).

A will can, however, include provisions for assets in the event that they may be refused by the intended heir. For instance, a will can include a clause stating, “if my transfer upon death account is unable to transfer to my listed beneficiaries, then it is my wish for their contents to be distributed in their entirety to the charitable organization known as _______.”

Similarly, a testator may want to include a contingent provision in their will describing who gets to inherit jointly owned property if no other co-owner is surviving at the time of the testator’s death.

A handwritten will can contain requests for burial and remembrance but know that these requests are not legally binding.

Refer to an attorney for more guidance on what you may want to include in your handwritten will.

Work With a Dedicated New Mexico Handwritten Will Law Firm

New Mexico Financial & Family Law strives to respect your preferences for your will, helping your last wishes be honored in the event of your death.

In addition to providing assistance with drafting a comprehensive and legally enforceable handwritten will, we can review other parts of your estate plan to help you prepare for medical incapacitation or other sensitive situations.

Find out more about how our New Mexico handwritten will law firm can help when you call us at 505-503-1637 or contact us online.