When it comes to naming someone to carry out your funeral arrangements, New Mexico is more restrictive than most states. If you write down the arrangements you want, New Mexico law allows the personal representative you appoint in your will to carry them out. Otherwise, your relatives will make final decisions for you.
Despite limited options for naming an agent, it’s always a good idea to document your funeral wishes and set aside funds to cover your last expenses, including the costs of burial or cremation.
Read on for important information on handling these tasks.
Who Has the Right to Make Funeral Arrangements in New Mexico?
New Mexico law determines who can make decisions about your funeral and body disposition -- that is, burial or cremation -- after your death.
If you make a will and leave funeral instructions. As long as you write down what you want, the personal representative you name in your will has the authority to carry out your plans. (New Mexico Statutes § 45-3-701.) See below for important guidelines on writing down your wishes.
If you do not leave written instructions. If you don’t write down your plans, decision-making authority goes to the following people, in order:
- your surviving spouse
- a majority of your adult children
- your parents
- a majority of your adult siblings
- an adult who has exhibited special care and concern for you, who is aware of your views and desires regarding body disposition, and who is willing and able to make decisions about the disposition of your body, or
- your next of kin.
If you’re in the military. You may name the person who will carry out your final wishes in the Record of Emergency Data provided by the Department of Defense.
Who Pays for Funeral Costs in New Mexico?
The average cost of a funeral is more than $7,000, according to the National Funeral Directors Association. This figure doesn’t cover many common expenses such as cemetery costs, markers, flowers, or obituaries. For many people, after a house and a car, funeral goods and services are the most expensive thing they’ll ever buy. It’s wise to make a plan to pay for these costs.
You have two basic options for covering your funeral expenses, including the costs of burial or cremation. You can:
- pay in advance, or
- leave enough money for your survivors to pay the bills.
If you don’t do either of these things, your survivors must cover the costs of your funeral arrangements.
Paying in advance. If you want to pay for your funeral arrangements ahead of time, make sure you’re dealing with a reputable funeral establishment and clearly document any plans you make, so your survivors can easily carry them out. Though the law requires providers of funeral goods and services to carefully manage your funds (see, for example, New Mexico Statutes § 59A-49-6), abuses do happen. What’s more, if a funeral establishment goes out of business, your careful planning may be lost.
For more information, see The Prepaid Funeral and Its Perils.
Setting aside funds. The safest and easiest way to cover the costs of your final arrangements is to estimate costs and tuck away the funds in an easily accessible, interest-earning bank account. You can designate a beneficiary who can claim the funds immediately after your death. Make sure the beneficiary understands what the money is for, however, and that you trust him or her completely, because the beneficiary is under no legal obligation to use the funds for your final arrangements.
For more information about setting up an account to cover the costs of your final arrangements, see Payable-on-Death (POD) Accounts: The Basics.
Writing Down Your Funeral Plans
Letting your survivors know what kind of funeral arrangements you want -- including your wishes for ceremonies and whether you want to be buried or cremated -- will save them the difficulty of making these decisions during an emotional and stressful time.
If you want your body to be cremated. In New Mexico, if you want your body to be cremated, you may state that desire in a written document that you sign in front of a notary public or two witnesses -- or you may include your wishes in your will. (New Mexico Statutes § 24-12A-1A.)
You can download a free cremation authorization form from the Funeral Consumers Alliance.
If you include cremation instructions in your will, it is critical that you give your personal representative a copy of your will or tell your representative how to easily find it after your death. Don’t lock your will away in a safe deposit box or otherwise restrict your personal representative’s access to it. If you do, your wishes may not be located until it is too late to carry them out.
How to write down other funeral plans and instructions. Nolo offers several tools to help you document your wishes for final arrangements. Each one walks you step-by-step through the process, so you won’t miss any important issues. If you record your wishes using one of these methods, you should make sure your personal representative or other survivors have easy access to it after your death.
- Quicken WillMaker Plus can create a final arrangements document for you. The software program asks you questions about your wishes and then produces a detailed document you can give to others. You can use the program to make your health care power of attorney, too.
- Get It Together: Organize Your Records So Your Family Won't Have To, by Melanie Cullen with Shae Irving, is a workbook that provides a complete system for documenting information for your personal representative and family members, including your wishes for final arrangements.
- Nolo’s Final Arrangements Kit includes all the basic forms and instructions you need to document your final wishes.
To learn more about making your final arrangements, see Getting Your Affairs in Order on Nolo.com.
For details on the rules that control disposing of remains in New Mexico, see Burial and Cremation Laws in New Mexico.