New Mexico Wills

Page Navigation:

The legislation governing Wills and estates in New Mexico is Chapter 45 Uniform Probate Code.

New Mexico Will Requirements

Making a legal Will in New Mexico is an important step for estate planning. A properly structured and executed Will can protect your assets and your family.

Who can make a New Mexico Last Will and Testament?

Any person aged 18 years or older who is of sound mind is legally entitled to write a Will. 45-2-501

What are the formal requirements?

A New Mexico Will must be:

  • In writing;

 

  • Signed by the testator (person making the Will); and

 

 

  • Witnessed by at least two persons. 45-2-502

 

Does New Mexico Recognize Holographic Wills?

Many states do away with the witness requirement as long as the primary provisions and the signature are in the testator’s handwriting, called a holographic Will. However, New Mexico does not allow these types of Wills. 45-2-502

Can my spouse witness my New Mexico Will?

Yes. Unlike other states, if a New Mexico Last Will and Testament is witnessed by a spouse (or any other person with an interest in the Will) this does not invalidate the document or any provision in it. In New Mexico, any individual generally competent to be a witness may act as witness to the Will, even interested persons. 45-2-505

How do I revoke my Will?

  • By making a brand-new New Mexico Will and Testament that revokes the previous. The revocation must be done expressly, otherwise it may only revoke those parts which are inconsistent with the subsequent Will; and

 

  • By performing a ‘revocatory act’ on the redundant New Mexico Will. This includes burning, tearing, cancelling, obliterating or destroying the Will. 45-2-507

 

Does New Mexico recognize Joint or Mutual Wills?

Any person who is able to write a New Mexico Willmay enter into a contract with another person concerning their succession. The contract may stipulate obligations to:

  • make a Will or devise

 

  • not to revoke a Will or devise; or

 

 

  • to die intestate.

 

The mutual Wills contract must comply with the requisite formalities. 45-2-514

Where can I deposit my New Mexico Last Will and Testament?

The district court accepts New Mexico Wills for safekeeping. Your Will is kept confidential and on your death, it will be delivered to the person nominated or to the appropriate court. 45-2-515

New Mexico Probate Process

Once the testator dies, the New Mexico Last Will and Testament must be submitted to probate in order to be able to transfer property. 45-3-102. There are situations where no probate is required if the estate is small enough. The executor must also apply to be appointed as personal representative of the estate.

Estate does not exceed $30,000

If the entire estate consists of personal property worth $30,000 or less, a beneficiary under the New Mexico Will may simply use an Affidavit to collect the decedent’s personal property without probating the Will. 45-3-1201. This process may be used after 30 days of the death.

Small Estates

If it appears that the estate does not exceed the family allowance, personal property allowance and necessary administration costs, funeral expenses and medical/hospital expenses of the decedent’s last illness, then the personal representative may distribute the estate immediately. This can be done without probate and without giving notice to creditors. The personal representative simply needs to file a closing statement. 45-3-1203

Informal Probate of a New Mexico Will

If there is a New Mexico Last Will & Testament in place, the executor named in the document may file a Probate Form 4B-102, Application for informal probate of will and for informal appointment of personal representative. If the probate court is satisfied with the application, then it may grant the probate order and issue Letters Testamentary to appoint the personal representative. Once granted, the applicant must give written notice of the probate to heirs and devisees within 30 days. 45-3-306

Estate Tax

An estate tax return (Form RPD-41058) only needs to be filed if the personal representative has a duty to file a federal estate tax return. The state return must be filed with the New Mexico Taxation and Revenue Department (TRD). The same deadlines apply as for federal filing. The state tax equals the federal credit on the transfer of the net estate for residents. For non-residents the tax equals the federal credit imposed on the net estate located in New Mexico.

Contesting a New Mexico Will

Formal Testacy Proceedings

If a person wishes to challenge a decedent’s New Mexico Will and Testament, he/she will need to commence formal testacy proceedings. This litigation determines whether the deceased left a valid Will. 45-3-401 The petition for adjudication of intestacy (that the deceased died without a valid Will) must: 45-3-402

  • request a judicial finding and order that the decedent left no Will;

 

  • determining the heirs, contain certain statements as required in informal proceedings concerning the party’s interest in the estate, information about the decedent, his/her Will, the testator’s death and other relevant information;

 

 

  • indicate whether supervised administration is sought;

 

 

  • May request an order determining intestacy without requesting appointment of a personal representative.

 

In a formal testacy proceeding, the interested person who opposes probate must state his/her objection in the pleadings. 45-3-404

Grounds for Contesting

Persons who contest a New Mexico Will must prove either lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. 45-3-407

Penalizing Clause

If the New Mexico Will contains a clause penalizing any person for challenging the Will, that clause is unenforceable if probable cause exists for instituting the proceedings. 45-2-517

Excluding a Spouse or Children from a New Mexico Will

Trying to deprive a child or spouse from your Last Will and Testament is not as simple as omitting them from the Will. The New Mexico code provides statutory allowances in such circumstances. Exclusion of these persons from your Last Will should never be attempted without guidance from a qualified attorney.

Disinheriting Your Spouse

If your try to exclude your spouse from your New Mexico Last Will and Testament, he/she is still entitled to statutory allowances under the probate code. These allowances apply notwithstanding contrary intentions in your Will. The spousal entitlements include:

  • Family Allowance of $30,000. 45-2-402

 

  • Personal Property Allowance up to the value of $15,000 in household furniture, furnishings, appliances, automobiles and personal effects. 45-2-403

 

Further, if you neglect to update your New Mexico Will after you marry, then on your death your spouse may be entitled to an intestate share of your estate. The intestate share is the portion your spouse would otherwise be entitled to if you had died without a Will. 45-2-301

Disinheriting a Child

New Mexico also provides statutory allowances for children. If there is no surviving spouse, then your children may be entitled to various statutory entitlements including:

  • The family allowance of $30,000 is shared between your minor and dependent children; 45-2-402

 

  • The personal property allowance of $15,000 value is shared between your children who are beneficiaries under your New Mexico Will and omitted children who are otherwise entitled to a share of your estate. If there is no Will, then any children who are intestate heirs are entitled to this value jointly. 45-2-403

 

Omitted children

If you fail to update your Will after you give birth to or adopt a child, then on your death that child or children may be entitled to an intestate share of your estate. The portion is based on whether you had any children living at the time you executed your New Mexico Last Will and Testament, how much was given to those children and how many children you had after the Will was made. 45-2-302

Intestate Succession New Mexico

If you die without leaving a valid New Mexico Will and Testament (dying intestate) then your property will pass in accordance with the New Mexico intestate succession laws. The state differentiates between separate and community property. Separate property includes property each spouse acquired prior to the marriage or obtained after a decree of dissolution of marriage. It also comprises property acquired by gift, bequest, devise or descent. 40-3-8A Community property includes assets acquired by the spouses together during their marriage which is not separate property. 40-3-8B Firstly, if there is no New Mexico Will, the intestacy rules provide for the spouse. Any remaining property not distributed to the spouse is divided between other heirs.

What does my spouse receive?

Separate Property
  • If there is no surviving issue – the whole intestate estate

 

  • If there is surviving issue – ¼ of the intestate estate

 

Community Property
  • The decedent’s ½ of community property

What do my other heirs get?

Any amount not passing to your spouse is distributed to your heirs as follows:

  1. To your children (and grandchildren by representation). This means if a child if yours predeceases you, his/her children will share the amount your deceased child would have received;

 

  • If there are no descendants, to your parents equally or to the surviving parent if only one survives;

 

 

  • If there are no descendants or parents, to your brothers and sisters (or their descendants by representation);

 

 

  • If there are no other heirs including grandparents, descendants of grandparents, or other relatives, then your entire estate escheats to the state of New Mexico.

 

Examples of Intestacy Distributions

Here are some examples of property distributions that would take place if a family member passes away without having made a New Mexico Will: Intestate succession where wife dies without a Will, leaving husband and children: Jill passed away without a will. She had two children to her husband Ron. Her estate is worth $100,000 in separate property and $100,000 in community property. Who gets what? Jill: $25,000 separate property + all community property, Jill & Ron’s children: $37,500 separate property each. Intestacy distribution to wife, children and husband’s child from former partner where husband dies with no Will: Terry died leaving an estate of $100,000 of each separate & community property. He had no will. He had two children to his wife Fay. Terry also has a child from a former partner. Who gets what? Fay: $25,000 in separate property + all community property, Fay & Terry’s 2 children: $25,000 separate property each, Terry’s child from former partner: $25,000 separate property. Wife died without a Will – how much does husband, children and stepchild receive? Candy died leaving $100,000 in separate property and $100,000 in community property. She had no will. She has two children to her husband Dan. Dan also has a child from a former partner. Who gets what? Dan: $25,000 in separate property + all community property, Dan & Candy’s 2 children: $37,500 separate property each, Dan’s child from former partner: Nil. Widow died without a Will – share of surviving child and grandchildren: Andy died without a will. His estate is worth $300,000. He had 3 children with his wife (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (only child): $100,000 (1/3), Grandsons (brothers): $50,000 each (share 1/3).

New Mexico Will Forms

Note: Before writing a New Mexico Last Will and Testament, we recommend you read up on preparing, signing and witnessing a last Will. Also, familiarize yourself with:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Common Will forms available as downloads (printable PDF documents).

New Mexico Will Form: Married with adult children
New Mexico Will Form: Married with adult and/or minor children, includes a trust for minor children
New Mexico Will Form: Married with no children

New Mexico Will Form: Single with adult children
New Mexico Will Form: Single with adult and/or minor children, includes a trust for minor children
New Mexico Will Form: Single with no children

Comments are closed.