A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. New Mexico wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a New Mexico living will, or advance directive, provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) determine the distribution of an estate's assets. Because the outcome may not coincide with the decedent's (the deceased) wishes, it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a New Mexico last will and testament form also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.
In New Mexico, applications for probate must be filed along with estate papers and the will in order to open an estate. New Mexico offers a simplified probate process that involves filing a sworn affidavit if the value of the estate is below a certain amount.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In New Mexico in the absence of a will, a surviving spouse inherits the entire estate unless the decedent and the spouse share descendants, in which case the spouse inherits all of the decedent’s community property and a quarter of the separate property; the descendants inherit the rest.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, may inherit depending on the closeness of the relation.
Exceptions to Ability to Distribute Property
Not all property can be distributed according to a will. Some exceptions in New Mexico include the following:
Property owned in joint tenancy with right of survivorship
Life insurance policy and retirement account proceeds
Entitlement of spouse’s share if spouse is excluded from the will
Form a Last Will in New Mexico
The basic requirements for a New Mexico last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his conscious presence, by his direction.
- Witnesses: A New Mexico will must be signed by at least two individuals, each of whom signed after witnessing the testator sign the will.
- Writing: A New Mexico will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Changing a New Mexico Last Will and Testament
A New Mexico will may be changed at any time by codicil (an amendment to the will), which must be executed in the same way as a will.
Revoking a New Mexico Last Will and Testament
The revocation of a New Mexico will can be accomplished by executing a subsequent will or by a revocatory act on the will such as “burning, tearing, or canceling” the document with the intent and for the purpose of revoking it, done by either the testator or by someone else at his direction in his conscious presence.
Note that in New Mexico, if the testator gets divorced or has his marriage annulled after executing a will, certain provisions in favor of the ex-spouse are revoked unless the will provides otherwise.
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