What If I Die Without a Will in New Mexico?

When a person dies and has a will, they leave instructions on distributing their assets, personal property, and real property among their family. However, if the decedent has no will, they die “intestate,” and New Mexico intestacy laws apply.

Under intestate succession laws, if there is a surviving spouse or child, they inherit the estate. If not, your next of kin, such as parents, siblings, or grandparents, inherit. If the court can’t find your next of kin, your assets go to the State of New Mexico.

What Does a Will Do?

A will allows you to choose who handles your estate, who receives your property, and who cares for your young children. You may also:

• Name a personal representative or executor to locate your will and assets, file the will with the probate court, and follow your wishes in your will
• Identify and give away specific items of personal property and real estate to the people you name
• Name beneficiaries to receive the remainder of your estate
• Make charitable bequests to charities of your choice
• Name guardians for minor children, if necessary
• Name caregivers for pets and set aside money to care for them, if necessary

Making your wishes known and identifying your property and beneficiaries speeds up the probate process, saving your family members time and money in court.

What Does a Will Do?

A will allows you to choose who handles your estate, who receives your property, and who cares for your young children. You may also:

• Name a personal representative or executor to locate your will and assets, file the will with the probate court, and follow your wishes in your will
• Identify and give away specific items of personal property and real estate to the people you name
• Name beneficiaries to receive the remainder of your estate
• Make charitable bequests to charities of your choice
• Name guardians for minor children, if necessary
• Name caregivers for pets and set aside money to care for them, if necessary

Making your wishes known and identifying your property and beneficiaries speeds up the probate process, saving your family members time and money in court.

What Doesn’t a Will Do?

A will transfers many types of assets, but some assets cannot transfer by a will. These non-probate assets pass according to the terms of their own legal documents and include:

• Annuities
• Pensions
• 401(k) retirement accounts
• IRAs
• Keoughs
• Property owned in joint tenancy with right of survivorship
• Trusts, including living trusts and assets owned by trusts
• Funds in payable on death or transfer on death bank accounts
• Life insurance policies payments (to beneficiaries other than to the estate itself)

Check all your account and policies to for the correct beneficiary and backup beneficiary names (in case your primary beneficiary dies before you). If you do not have a beneficiary for these accounts and policies, these assets become part of your probate estate.

Who Can Make a Will in Indiana?

To be able to make a will in Indiana, the testator (the person creating the will) must meet the following requirements:

• Age: A testator is 18 years old or, if younger, a member of the armed forces or merchant marines.
• Sound Mind: Must be of sound mind. Being of sound mind means the person has testamentary capacity, which means they understand what they own, who their natural heirs are, how they want to distribute their property, and that they are signing their will.

A testator must have testamentary capacity at the time they make and sign the will. Indiana residents with concerns about their testamentary capacity should consult an estate planning attorney for legal advice and assistance.

Does Indiana Have a Statutory Will?

No. There is no statutory will in the state of Indiana or a set form that you must use. You can either create your own will or hire an estate planning attorney to draft one for you. Online self-help solutions such as FindLaw Legal Forms and Services to assist you in creating a will conforming to Indiana state laws.

What Types of Wills Does Indiana Accept?

Most will are typewritten or printed on paper and signed by the testator. However, it is important to know the other types of wills and if they are acceptable in Indiana.

• Handwritten Will: A handwritten will, also called a holographic will, is a will handwritten and signed by the testator without any witnesses. This type of will is not valid in Indiana.
• Oral Will: An oral will is one spoken to another. Also called a nuncupative will, this is valid in the state if the testator is in “imminent peril of death” and actually dies from that peril. The testator must declare that the oral statement is their will before two disinterested witnesses. One of the witnesses must put the will into writing within 30 days of the declaration and submit the document to the probate court within six months of the death. The will may dispose of personal property of no more than $1,000. However, if the testator is in active military service at a time of war, it can dispose of property of no more than $10,000.
• Electronic Will: Indiana is one of a few states permitting the use of an electronic will. It is a complex process that requires the inclusion of document integrity evidence and identity verification evidence. If you intend to make an electronic will, you should do so with the assistance of an experienced attorney.

While Indiana allows oral and electronic wills, these formats may more likely be subject to will contests. It may be best to create a traditional written will to avoid disputes.

Can I Make My Own Will in Indiana?

Yes. You can make your own will in Indiana. There is no legal requirement to use an attorney to draft your will. Many people opt for online estate planning solutions, such as FindLaw Legal Forms and Services, to create their will customized to their needs. The advantage is that they can make a new will whenever they have a life change, such as a death in the family, the birth of a child, or divorce. Such life events may prompt you to change your personal representative, beneficiaries, or guardians.

How Do I Make My Will Valid in Indiana?

There are several important rules to follow to make a valid Indiana will:

• Signature: The testator must either sign the will in the presence of two witnesses or acknowledge to two witnesses that the signature already on the will is their own or that they directed someone else to sign the will in the testator’s presence.
• Witnesses: Two competent witnesses must witness the testator’s signature. A competent witness is a mentally competent adult. It is a good idea not to use “interested witnesses.” An interested witness is a witness who receives a bequest under the will. The bequest is void unless there are two other disinterested witnesses. The interested witness is entitled to receive any share they would be allowed to under the intestacy statute, up to the amount of the bequest in the will.
• Notary: There is no requirement that you have to sign your will before a notary public.
• Self-Proving Affidavit: In Indiana, you can use an optional document called a self-proving affidavit can be attached to the will. This document includes notarized attestations by the testator and witnesses that the testator signed the will freely before the witnesses while of sound mind and that the witnesses also signed the will and were 18 years old or a member of the armed forces. This probate court accepts this without the witnesses having to testify in court.

Can I Disinherit My Spouse in Indiana?

You can leave your spouse out of your will, specifically disinherit them, or leave them less than they are entitled to by law in Indiana. If you do any of these things, your spouse has a right of election against your net personal property and real estate. They may receive to one-half the value of this regardless of whether you’ve disinherited them or left them less.

Can I Disinherit My Children in Indiana?

Yes. You can disinherit your child in Indiana. The best way to disinherit them is to state in your will that you are doing so. Otherwise, a court may think you forgot to include them.

What Estate Planning Documents Should I Have in Indiana?

A will is a significant first step in your estate planning. But you may consider other estate planning documents to help you and your family during your life:

• Power of Attorney. If you are suddenly incapacitated, who will handle your financial matters? When you name an agent in a power of attorney, they can pay your bills, manage your financial affairs, and provide your family with the resources they need. You decide what powers to give your agent and when the power of attorney begins and ends.
• Living Will. A living will or advance directive allows you to make your preferences known regarding life-prolonging treatment if you have an end-stage or terminal illness. You can also name someone who can make health care decisions for you if you cannot, as well as hire medical providers or aides, access your medical records, make anatomical gifts, request an autopsy, and plan for the disposition of your body.

Fortunately, making a valid will and creating other Indiana estate planning documents is easy with online estate planning templates.