Shares Under Statutory New Mexico Will

New Mexico has adopted the Uniform Statutory Will Act which entitles testators to make a statutory New Mexico Will. The predetermined shares of your spouse and other beneficiaries under the statutory Will form are found in the legislation:
45-2A-5. Shares under statutory will.
The statutory-will estate passes as provided in Sections 6 through 10 [45-2A-6 to 45-2A-10 NMSA 1978] of the Uniform Statutory Will Act. 45-2A-6. Share of spouse. A. The share of the surviving spouse is: (1) if there is no surviving issue, the entire statutory-will estate; or (2) if there is a surviving issue: (a) subject to any lien or encumbrance, the testator’s residence and tangible personal property, except personal property held primarily for investment or for a commercial, agricultural or other business purpose; (b) the greater of one hundred fifty thousand dollars ($150,000) or one-half of the balance of the statutory-will estate; and (c) subject to Subsection B of this section, an interest in the remaining portion of the statutory-will estate, including any property that would pass under Subparagraph (a) of this paragraph but disclaimed by the surviving spouse, in a trust upon the terms set forth in Section 7 [45-2A-7 NMSA 1978] of the Uniform Statutory Will Act. B. If the personal representative, other than the surviving spouse, determines that the trust under Section 7 of the Uniform Statutory Will Act would be uneconomical, the entire statutory-will estate passes to the surviving spouse. 45-2A-7. Trust for spouse and issue. A. Property held in trust under Subparagraph (c) of Paragraph (2) of Subsection A of Section 6 [45-2A-6 NMSA 1978] is held upon the terms of Subsections B through D of this section. B. During the life of the surviving spouse, the entire net income must be paid to or for the benefit of the surviving spouse in quarterly or more frequent installments; net income accrued or undistributed on the death of the surviving spouse must be paid to the estate of the spouse; if unproductive property is held in the trust, the surviving spouse at any time by written instrument delivered to the trustee may compel conversion of the unproductive property to productive property. C. During the life of the surviving spouse, the trustee at any time may pay to or for the benefit of the surviving spouse and issue of the testator amounts of the principal the trustee deems advisable, giving reasonable consideration to other resources available to the distributee, for the individual’s needs for health, education, support or maintenance; for the purpose of making those discretionary payments, the principal must be administered as two separate shares, which at the inception of the trust must be equal; one share is the surviving spouse’s share of the principal; during the life of the surviving spouse, payments may not be made from the surviving spouse’s share to anyone other than the surviving spouse; primary consideration must be given to the needs of the surviving spouse and the children of the testator who are under the age of twenty-three years or under disability. The trustee may rely in good faith on a written statement furnished by a beneficiary. The discretion to pay principal to or for the benefit of any individual includes the discretion after that individual’s death to pay expenses incurred before the individual’s death and to pay funeral and burial expenses. If the trustee, other than the surviving spouse, determines that continuation of the trust is uneconomical, the trustee may terminate the trust by distribution of principal to the surviving spouse. Principal that in the exercise of the trustee’s discretion is paid to or for the benefit of any issue may be charged against any share of income or principal thereafter existing for that issue or for any ancestor or descendant of that issue if the trustee upon equitable considerations so determines. If the surviving spouse or any issue is serving as trustee, the trustee’s discretion pursuant to this subsection is not exercisable in favor of that trustee except as necessary for the trustee’s needs for health, education, support or maintenance, nor is the trustee’s discretion exercisable in favor of the trustee’s estate, the trustee’s creditors or creditors of the trustee’s estate. D. On the death of the surviving spouse, the principal, unless retained in trust under Section 9 or 10 [45-2A-9 or 45-2A-10 NMSA 1978] of the Uniform Statutory Will Act, must be paid, subject to any charges made by the trustee under Subsection C of this section, to the children of the testator in equal shares if all of the children are then living, otherwise to the then living issue of the testator by representation or, if no issue of the testator is then living, to the individuals who would be entitled to receive the estate as if the property were located in this state and the testator had then died intestate domiciled in this state in proportions determined under the law then existing. 45-2A-8. Shares of heirs when no surviving spouse. A. If there is no surviving spouse, the statutory-will estate passes, subject to Sections 9 and 10 [45-2A-9 and 45-2A-10 NMSA 1978], as follows: (1) if there is surviving issue, in equal shares to the children of the testator if all of them survive, otherwise to the surviving issue of the testator by representation; or (2) if there is no surviving issue, to the individuals entitled to receive the estate as if the property were located in this state and the testator had died intestate domiciled in this state in the proportions so determined. B. Unless the personal representative determines that a trust would be uneconomical, property to which Section 9 or 10 applies must be distributed to the trustee. If the personal representative determines that a trust would be uneconomical, the property passes under Subsection A of this section free of trust. The discretion provided in this subsection to the personal representative is not exercisable by any of the testator’s issue serving as personal representative. 45-2A-9. Trust if child under specified age. A. If property is distributable under Section 8 [45-2A-8 NMSA 1978] or Subsection D of Section 7 [45-2A-7 NMSA 1978] of the Uniform Statutory Will Act to a child of the testator who is under the age specified in the will or, if the will does not specify an age, under the age of twenty-three years, all shares distributable to issue of the testator must be held in a trust under this section. In exercising powers under Subsections B and C of this section, primary consideration must be given to the needs of children of the testator who are under the age of twenty-three years or under disability. B. Until no living child of the testator is under the age determined under Subsection A of this section, the trustee shall pay the income and principal of the trust to or for the benefit or account of one or more of the issue of the testator in amounts the trustee deems advisable for their needs for health, education, support or maintenance. Income not so paid may be added to principal. C. The trustee at any time in its discretion may distribute to a beneficiary the share, in whole or in part, of the trust to which the distributee would be entitled if the trust then terminated. If the whole of a share has been distributed under this subsection, the trustee thereafter must not make any further distribution of income or principal to that distributee or issue of that distributee. D. The trust terminates when no living child of the testator is under the age determined under Subsection A of this section or the trustee determines that continuation of the trust is uneconomical. E. Subject to section 10 [45-2A-10 NMSA 1978] of the Uniform Statutory Will Act and Subsection C of this section, the property in the trust must be distributed upon termination to the issue of the testator in proportion to the shares determined at the death of the surviving spouse under Subsection D of Section 7 of the Uniform Statutory Will Act, or at the death of the testator under Section 8 of that act if there is no surviving spouse. In determining the amount to be distributed to any distributee, the trustee shall charge the share of that distributee with any partial distribution made under Subsection C of this section and may charge, in its discretion, the share of that distributee with distributions under Subsection B of this section to or for the benefit or account of the distributee, or issue or ancestor of the distributee. If any issue whose share is held in trust under this section dies before the complete distribution of the share, the property to which the issue would have been entitled if living must be distributed to the assignees, or, if none, to the estate of the deceased issue. F. If an issue is serving as trustee, the discretion of the trustee under this section is not exercisable, except as necessary for that individual’s needs for health, education, support or maintenance, in favor of that individual, that individual’s estate, that individual’s creditors or the creditors of that individual’s estate. 45-2A-10. Effect of disability at distribution. A. If property becomes distributable by a personal representative or trustee to an individual under the age specified in the will or, if the will does not specify an age, under the age of twenty-three years, or to an individual who the personal representative or trustee determines cannot effectively manage or apply the property by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause: (1) the personal representative or trustee, as to principal or income, may distribute part or all of the property to the distributee directly, by deposit or investment in the distributee’s name or for the distributee’s account, or to a guardian or conservator for the distributee; (2) the personal representative may distribute to the trustee in trust under Paragraph (3); or (3) the trustee may retain all or any of the property in trust for the distributee and thereafter at any time the trustee may distribute or apply part or all of the principal or income to or for the benefit or account of the distributee. B. Unless terminated earlier, a trust under Paragraph (3) of Subsection A of this section terminates upon the attainment of the required age, removal of the disability or death of the distributee. Upon termination, the trustee shall distribute the remaining trust property to the distributee or personal representative of the distributee’s estate. C. This section does not apply to distributions to a surviving spouse of the testator.

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