What is a Last Will and Testament


A New Mexico Last Will and Testament, when prepared and executed properly by a person who is an adult of sound mind with legal responsibility for his- or herself, is a formal document that specifies how their assets or estate will be managed and distributed after their death. The person who dies is formally referred to as the decedent. If the decedent has minor children, the Last Will and Testament may also be used to designate who they want to care for their children and who they wish to handle their childrenís inheritance/finances until each child comes of age (usually 18, but you can designate a different age) to handle their finances on their own.

In a Last Will and Testament, the decedent usually also names a personal representativeóor co-personal representatives (two or more persons acting together in this capacity)óto manage the matters of the estate. The personal representative is the person who gathers all of the information about the decedentís debts and assets, pays outstanding debts using the assets on behalf of the estate, and ensures that the decedentís property is distributed as specified in the Will, so this is a job with a lot of responsibility, and the personal representative selected is usually someone the decedent really trusts to follow through on the details and with his or her wishes.

If a person dies without having a valid Last Will and Testament (which usuallyóin most statesómeans it must be properly witnessed, as wellónot just signed), someone will usually be appointed by the court to be the personal representative and will pay the decedentís debts, liquidizing assets as necessary to do so. Then the remaining assets will be distributed among the decedentís heirs according to the laws of the state the decedent lived in.

In some states, if one spouse dies leaving behind a husband or wife, that living spouse will inherit all of the decedentís property in the absence of a Last Will and Testament stating to the contrary. In other cases, the decedent may have specified a particular beneficiary to inherit a life insurance policy, retirement account, or other asset, and that beneficiary designation will dictate who receives those assets in the absence of a New Mexico Last Will and Testament.

The important thing to note is that anyone who wishes to designate how their assets will be distributed after their death should prepare and properly execute a Last Will and Testament to ensure their wishes are known and honored. If they donít, they may be leaving it up to chance, the laws of the state in which they reside at the time of their death, or a court of law as to how their final affairs will be settled.  New Mexico free information on last will and testament forms.

Legal Requirements for Last Wills in New Mexico

In New Mexico, when people die, and there is some property remaining after their death, there are two possible case scenarios: either these people leave a testament where they write down their will relating to the remaining property (personal or real property), or they do not leave any will (such people are called intestate). In this case, it is up to the state laws to divide all the remaining property between inheritors relying on their vision. Very often, state laws divide the testator's property not in the way the testator would do, so if people care about who inherits the property after their death, they need to leave a testament (even though it is not necessary the New Mexico laws).

Usually, if there are no other inheritors, a surviving spouse receives all the assets. But if there are other inheritors (like children, for example), a surviving spouse gets only a fourth part of the separate assets but all the community property. Descendants receive all the rest of what's left. If there are no descendants or a spouse, then other relatives (such as grandparents and siblings) inherit a testator's assets. If testators divorce, there is a chance their spouses will not get anything stated in the will if there was no statement proving the opposite.

When testators do not want to transfer their property to any of their relatives, there are several options they can consider. They can choose one of the following options:

  • Make a "pet trust" (so other people will care for a testator's pet after their death);

  • Make a trust for anyone;

  • Make a charitable gift;

  • Set a legal guardian for minor children.

Also, it is essential to note testators cannot include some type of property in their will. Such property includes the following items:

  • Retirement account proceeds;

  • Life insurance policy;

  • Community property;

  • Right of spouse's share (if that spouse is not included in the will);

  • Property gained in joint ownership with the right of inheritance.

The other important thing testators need to consider is the necessity of proving the will in probate court. When testators prove their will in probate court, they become the participants of the court-supervised process, which is aimed at the division and transferring of a testator's property (both personal and real).

To prove their will to the probate court, testators have to submit both estate papers and applications for probate to court. This is necessary to open an estate. If a testator's estate cost is lower than a certain amount (established by the New Mexico laws), testators need to fill an affidavit only. This makes the probate process as simplified as possible.

If testators want to change their will, they can do it any time by codicil (an amendment, in other words). The process of making amendments must be performed the same way as the will was stated.

If the situation occurs when testators want to revoke their will, they can do it, as well. For this, they need to perform either a revocatory act on the will (for example, by "canceling, tearing, or burning" the paper) or a subsequent will. Testators can do it on their own, or other people can do it under their guidance (on condition of them being in the conscious presence).

Essential items to add in the will:

  • Beneficial owners: they can be any people testators choose.

  • Capability: testators have to be of a healthy mind.

  • Age: testators must be older than 18 years old.

  • Witnesses: at least two people, and they can sign the papers only after a testator does.

  • Signature: either a testator can do this, or someone under their guidance (and a testator must be in their conscious presence).

  • Writing: the will must be completed in writing form.



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