Though the estate planning process has the potential to get complicated, below are some quick and simple answers to several of the most frequently asked questions regarding wills that we’ve received preparing New Mexico estate plans for clients. If you think you may need further information or help planning a will, consider consulting with an experienced estate planning attorney.
When a person dies before having executed a formal will or some other estate planning document which disposes of their assets, state default laws will determine what portions of the assets are inherited by whom; this default plan is called intestacy. In general, if you die without a will, the majority of your property and assets will go to your spouse and children. If you do not have a spouse or children, your property will usually go to your closest relatives, including parents, siblings, grandchildren, or even nieces and nephews. In the rare case that no relatives can be located, a person’s property would go to the state.
Another important thing to consider is who will care for minor children if a parent dies without a will. When this happens, a court will appoint a guardian for the children, to care for them until they reach adulthood. Where a person dies without a will and leaves behind a same-sex partner, under current law the surviving partner may not inherit anything- unless the couple resided in one of the few states which permits domestic partners to inherit according to the same rules as spouses.
Though every person over eighteen and of sound mind can make a legally binding will, there are some technical requirements that must be satisfied in order for the will to take effect:
First, the will should include the signatures of at least two witnesses. They must be “witnesses” in the sense that they were present when the person making a will (called the “testator”) signed the will. The witnesses should also be people who do not stand to inherit anything under the will, meaning they are not entitled to any of the testator’s property at the testator’s death (New Mexico follows the Uniform Probate Code which does not invalidate a will when there are interested witnesses). In states that allow “holographic” wills, which are handwritten wills, witnesses are not necessary (Note that New Mexico does not allow un-witnessed holographic wills as they do not comport with New Mexico statutory requirements).
A will does not need to be notarized. However, if you have your witnesses sign optional additional affidavits, in some states they should be signed before a notary public in order to avoid any question as to their validity after your death. Likewise, you need not file your will with any sort of government agency in order for it to be valid. Rather, your will should be stored in a safe place, and you should inform someone close to you (or the person named personal representative or executor of your estate in your will) of the will’s location. Basically, your will should be somewhere where it will be found without too much trouble upon your death.
Also, a will does not need to be written by a lawyer, and if all you require is a basic will, you may even be able to make one without the assistance of a lawyer. A “basic will” is one that specifies who should take your home, personal property, investments, and other assets upon your death, and who should care for your minor children. However, if you desire a more detailed estate plan one that includes a trust or other probate avoidance device, you should consider enlisting the help of someone like experienced probate attorney Christopher Dziak.
As mentioned above, a handwritten will is called a holographic will. Holographic wills are not considered valid in every state; some states allow un-witnessed holographic wills. A handwritten will can be used in New Mexico, but only if it comports with other statutory requirements to create a valid will. Some states also require that the will be dated. Some states even permit use of “fill in the blank” type forms, if the remainder of the will is written by hand, and the will is dated and signed properly.
To be frank, if you live in a state which permits holographic wills, executing a holographic will is better than not executing a will at all. However, a formal will signed in the presence of witnesses that was prepared by an attorney is ideal. If a person dies with a holographic will and that will goes to a probate court, a judge may heavily scrutinize the will in order to determine its legitimacy. When writing a holographic will without legal guidance or sufficient knowledge of the laws of wills, inheritance, and probate, it may be difficult to execute a will that will hold up to such scrutiny. In these situations, the will could be construed in a way differently than what the individual intended.
If you have young children, you can and should include in your will the identity of a person who will care for your children and manage their inheritances if you (and any other guardian they may already have) were to die before they reach the age of eighteen. This person, called a “personal guardian” will step in and become a legal guardian for the children, and be responsible for raising them until they are eighteen. If you and the other child’s parent both nominate guardians for your children in your individual wills, you should nominate the same person or persons so as to avoid conflict later on. Either the same guardian will be tasked with managing any inheritance you leave to your children in the will, or you can name a different person to take on that responsibility- this person will be a “property guardian,” a “trustee,” or a “custodian.”
With regard to excluding a spouse from your will, there are default laws which will protect disinherited spouses regardless of their exclusion. These laws will distribute a certain portion of a testator’s estate to their surviving spouse. These are referred to as statutory allowances. Also, in community property states, including New Mexico, a spouse will also have a fifty percent ownership in any property that was acquired by either of party during marriage, with a few exceptions. You are entitled to leave your portion of the property to whoever you wish, but doing so will not eliminate your spouse’s half interest in the same property. Also, you can leave your separate property- that which you owned before the marriage- to someone other than your spouse. In non-community property states, as previously mentioned, surviving spouses do have a right to a claim a portion of their deceased spouse’s estate, if they inform the court that they wish to make such a claim.
In almost all states, it is permissible to disinherit one’s children. However, issues can arise regarding whether a child was intentionally disinherited, particularly when a parent’s will was executed before the child’s birth. If a court concludes that a parent did not intentionally disinherit a child, the child will usually then become entitled to a portion of the parent’s estate.
It is rare that a court will change a will after the testator’s death, though a judge may construe ambiguous portions of a will to the best of his ability based on evidence of the testator’s intent. When a will is changed after death, such a change is usually fraudulently made by someone who feels they may have been “cheated” out of an inheritance. In order for a will to be completely thrown out after the testator’s death, leaving it invalid, it must be proven that the will is flawed in an unacceptable way: that its signature is forged, that the testator was mentally incapable of understanding their actions when they signed the will, that they were unduly influenced, etc.
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