How to Make a Will in New Mexico FAQ

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 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)

Who Can Make a Will in New Mexico?

New Mexico statutes set out requirements for the person creating the will, called the testator, to meet. These include:

• Age: The testator is 18 years of age or older or an emancipated minor.
• Sound Mind: The testator is of sound mind, which means they have not been deemed incompetent in a legal proceeding.

A testator must have a sound mind at the time they make and sign their will. New Mexico residents with concerns about if they can make a will should consult an estate planning attorney for legal advice.

Does New Mexico Have a Statutory Will?

Yes. New Mexico law provides a statutory will based on the Uniform Probate Code, a form that the state provides for making a will. You can find it in New Mexico Statutes Chapter 45 Section 45-2A-17. However, you do not have to use the statutory form as it is quite limited in how you distribute your property, and only the testator can sign it for validity. There are better options for a New Mexico will: either create your own will customized to your needs or hire an estate planning attorney for legal advice, such as in Albuquerque. Many people seeking self-help solutions choose online estate planning services to draft their will.

What Types of Wills Does New Mexico Accept?

A will is typically typewritten or printed and signed by the testator in front of witnesses. There are some other types of wills to be aware of; however, they are not allowed in New Mexico.

• Handwritten Will: A handwritten will, also called a holographic will, is a will entirely in the testator’s handwriting with the testator’s signature and no witnesses. This type of will is not valid in New Mexico.
• Oral Will: A spoken will, called a nuncupative will, is not valid in New Mexico.
• Electronic Will: An electronic will is a will signed, witnessed, or notarized by electronic means. Electronic wills are not valid in New Mexico.

These types of wills are unacceptable in New Mexico probate court.

Can I Make My Own Will in New Mexico?

Yes. You can make your own will in New Mexico. You do not need to hire an attorney. However, because a will is a legal document, you may consider an online will drafting service with forms developed to comply with New Mexico laws. The advantage of using an online will drafting service is that it allows you to customize and update your will whenever you want.

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How Do I Make My Will Valid in New Mexico?

New Mexico law has specific requirements to follow to make your will valid:

• Signature: The testator must sign the document or direct someone else to sign it for them in their presence.
• Witnesses: Two competent witnesses must be present and sign the will in the presence of the testator and each other. If a witness receives a bequest in the will, they are considered an interested witness, but in New Mexico, this does not invalidate the will or any provision of it. Regardless, it is always best to have disinterested witnesses, if possible, to avoid will challenges based on fraud or undue influence.
• Notary: There is no requirement that a notary attest to the testator’s signature.
• Self-Proving Affidavit: New Mexico statutes provide a form for a self-proving affidavit. This affidavit is a document that the testator and witnesses sign before a notary affirming that the testator signed their will. It can be used in place of witness testimony when the will goes to probate.

Can I Disinherit My Spouse in New Mexico?

New Mexico is a community property state, meaning each spouse owns half of all assets acquired during the marriage. A spouse can only dispose of their half through their will. The other half automatically belongs to their spouse, so a spouse always gets half of the community property. The property they owned before marriage is separate property, and the testator can dispose of that property by their will.

Suppose you execute a will before you are married. In that case, the surviving spouse is entitled to their intestate share unless there is evidence you made the will in contemplation of the marriage, the will states it is effective even if the testator later gets married, or the testator provided for the spouse outside of the will with other transfers in lieu of a bequest.

Can I Disinherit My Children in New Mexico?

You can disinherit your children; however, if you execute a will and a child is born or adopted after the fact and is left out of the will, they receive a share in the estate. If there were no living children when you create your will, the omitted child receives what they would have received if the testator died intestate. If there were children alive when you created your will, the omitted child is entitled to a share that depends on how much the other children receive in the will.

The exception to this under state laws is if it appears the omission was intentional or the testator provided for the omitted child with other transfers outside the will, then in that case, the child is not entitled to anything.

If you wish to disinherit a child, the best way to do so is to specifically state this in your will so there can be no confusion.

What Estate Planning Documents Should I Have in New Mexico?

In addition to a will, there are other important estate planning documents you should prepare, including:

• Power of Attorney. A power of attorney document gives authority to a person of your choice to make financial decisions for you if you cannot make them yourself.
• Living Will. New Mexico has an advance healthcare directive form. One part of this allows you to choose someone to make healthcare decisions and access your medical records if you are unable to do so. Another part of this document is a living will or advance directive. It allows you to leave instructions about what life-prolonging or end-of-life care you agree to. It also has a third part that allows you to designate a primary physician to be responsible for your health.

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