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Making a Will in New Mexico

How to make a will in New Mexico and what can happen if you don't.

Steps to Create a Will in New Mexico

Here's a quick checklist for making a will in New Mexico:

  1. Decide what property to include in your will.
  2. Decide who will inherit your property.
  3. Choose an executor to handle your estate.
  4. Choose a guardian for your children.
  5. Choose someone to manage children's property.
  6. Make your will.
  7. Sign your will in front of witnesses.
  8. Store your will safely.

Why Should I Make a New Mexico Will?

A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:

  • leave your property to people or organizations
  • name a personal guardian to care for your minor children
  • name a trusted person to manage property you leave to minor children, and
  • name a personal representative, the person who makes sure that the terms of your will are carried out.

What Happens if I Don't Have a Will?

In New Mexico, if you die without a will, your property will be distributed according to state "intestacy" laws. New Mexico's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, great aunts and uncles, nieces and nephews, cousins of any degree, and the descendants of a spouse who dies before you do. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.

Do I Need a Lawyer to Make a Will in New Mexico?

No. You can make your own will in New Mexico, using Nolo's Quicken WillMaker. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Nolo's will-making products tell you when it's wise to seek a lawyer's advice.

What Are the Requirements for Making a Will in New Mexico?

To make a will in New Mexico, you must be:

You must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see "Can I Make a Digital or Electronic Will?," below.) Type and print your will using a computer, or you can use a typewriter.

How Do I Sign My New Mexico Will?

To finalize your will in New Mexico:

  • you must sign your will in front of two witnesses, and
  • your witnesses must sign your will in front of you and each other. N.M. Stat. Ann. § 45-2-502.

While New Mexico allows "interested" witnesses who stand to inherit to serve as your witness (N.M. Stat. Ann. § 45-2-505), it's usually best to have only disinterested witnesses sign your will to avoid arguments that your witnesses wrongfully influenced you into signing your will.

Do I Need to Have My Will Notarized?

No, in New Mexico, you do not need to notarize your will to make it legal.

However, New Mexico allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.

To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that states who you are and that each of you knew you were signing the will. N.M. Stat. Ann. § 45-2-504.

Should I Use My Will to Name a Personal Representative?

Yes. In New Mexico, you can use your will to name a personal representative who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker produces a letter to your personal representative that generally explains what the job requires. If you don't name a personal representative, the probate court will appoint someone to take on the job of winding up your estate.

Can I Revoke or Change My Will?

In New Mexico, you may revoke or change your will at any time. You can revoke your will by:

  • burning, tearing, canceling, obliterating, or destroying all or part of the will
  • ordering someone else to burn, tear, cancel, obliterate, or destroy all or part of the will in front of you
  • making a new will that says it revokes the old will or that has contradictory terms to the old will, or
  • making another document that says it revokes the will and following the same formalities you used to make your original will (see above). N.M. Stat. Ann. § 45-2-507.

If you have two wills and it's not clear whether you revoked the old will or simply adding to it, New Mexico has laws that determine this. If you intended to revoke the old will by making the new will, this revokes the old will. New Mexico law presumes you intended to revoke the old will if the new will completely disposed of your estate. If you did not dispose of all of your estate, New Mexico law presumes that you only intended to add to the old will. In this situation, your executor should follow the instructions in both wills. If there is a term that is contradictory in the wills, your executor should follow the instructions in the new will. N.M. Stat. Ann. § 45-2-507.

If you and your spouse divorce (or if a court determines that your marriage is not legal), New Mexico law revokes any language in your will that leaves property to your spouse or names your spouse to be your executor. This rule also applies to any of your former spouse's relatives. This rule does not apply if you happen to remarry your spouse or if you specifically state in your will (or divorce decree or contract relating to the division of your property) that divorce should not affect the provisions in your will. N.M. Stat. Ann. § 45-2-804. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help.

If you need to make changes to your will, it's best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).

Can I Make a Digital or Electronic Will?

In a few states, you can make a legal will digitally – that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. It is generally assumed that most states will allow them in the near future.

Where Can I Find New Mexico's Laws About Making Wills?

You can find New Mexico's laws about making wills here: New Mexico Statutes Chapter 45 Uniform Probate Code Article 2 Intestate Succession and Wills Part 5 Wills.

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