Have you given any thought to what might happen when you die? If you have assets, children, a spouse, or a long-term partner, you should have a last will and testament. If you die before having a will in place, your estate will be distributed according to New Mexico law, which may or may not be the same as you would have wished.
If you have limited assets and no children, a simple will designating beneficiaries for your assets and belongings may be sufficient. If you have significant assets, minor children, beneficiaries with special needs, or a desire to keep beneficiaries’ inheritances in trust after you die, more extensive estate planning may be more appropriate.
What Should Be in Your New Mexico Will
In addition to basic personal and family information, your will should clearly state what should happen to your assets after you die. All assets and belongings should not be specifically identified, since they will change over time, but your will should clearly provide for the disposition of your complete estate—everything you do own when you die.
You will also need to appoint a personal representative (sometimes called an executor) of your estate. This could be your spouse or partner, an adult child, a family friend, or anyone else that you trust. If you have minor children, you also must choose a guardian. Unless the other parent is deceased, incarcerated, or otherwise deemed unfit, the other parent will generally be awarded custody upon your death, even if you have named someone else as guardian in your will.
Keep in mind that your will won’t have any legal effect on assets that you own jointly with someone else, assets with beneficiary designations, or assets that were already held in trust when you die. These types of assets should be considered separately and coordinated with your estate plan so that your overall intentions are honored.
Do I Need a Will if I Have a Living Trust?
Yes, you do. Having a pour-over will in combination with a living trust will help ensure that all of your assets end up in your revocable trust, by simply transferring them and distributing them as you intended.
Why You Shouldn’t Draft Your Own Will
Estate planning and probate laws are detailed and complex. While there are DIY options for creating your own will, without legal education and experience, you are not in a position to know which laws apply to you and what happens if you inadvertently break them. Unfortunately, if a mistake is made, fixing the mistake after you die can be time-consuming, costly, or even impossible.
An attorney can ensure that your wishes will be carried out legally, and can also make sure your will is legal and binding according to New Mexico law. For example, the will may not be enforceable unless it is signed in front of and by two witnesses and all signatures are notarized. If your will is not properly executed, it may as well not exist.
- Not everyone needs a will. Generally, you do not need to worry about a will if:
The deed to your home, your bank/financial accounts, your retirement accounts, your life insurance, and all other significant assets you own when you die already name a beneficiary upon death;
- You do not have minor children; and
- Your wishes align with the New Mexico statutory framework for intestate succession.
If you aren’t sure whether or not you need a will in New Mexico, we can help. Contact us today for a consultation to discuss your situation. Our attorneys will let you know if a will is unnecessary, or if there are better ways to ensure your limited assets go to your desired beneficiaries.