new mexico probate
Trusts & Wills
Trusts & Wills in New Mexico
Trusts
A Trust is a legal arrangement involving three parties. The first party, called the Trustor or Settlor, transfers their assets to a Trust. A second party, called the Trustee, manages the assets for the benefit of the third party, the beneficiary of the Trust.
Requirements for a Living Trust to be Valid in New Mexico:
- The Settlor (the person who created the Trust) has the capacity to create the Trust.
- The Settlor indicates an intention to create the Trust.
- The Trust has a definite beneficiary.
- The Trustee has duties to perform.
- The Trustee is responsible for managing and investing the property on behalf of the beneficiaries, and for ultimately distributing the property to the beneficiaries. (If a Trustee fails to act in the beneficiaries’ best interest, you might want to pursue Trust litigation or seek the removal of the Trustee).
- The Trustee is not the sole Trustee and sole beneficiary.
Wills
A valid, written, legal Will indicates your wishes as to how your real and personal property should be distributed following your death. When someone passes away, they either do so with a Will (which is referred to as “testate”) or without a Will (which is referred to as “intestate”). Regardless of whether the deceased person executed a Will, the estate typically must pass through probate before assets can be distributed to the heirs.
Requirements for a Last Will & Testament to be Valid in New Mexico:
- The Will must be in writing.
- The Will must be signed by the Testator (the person making the Will). If the Testator is unable to sign, the Will may be signed by another individual in the Testator’s presence and at the Testator’s direction.
- The signing of the Will by the Testator must be witnessed by at least two witnesses, each of whom must sign in the presence of the Testator and each other after witnessing the signing of the Will.
What is Not Considered a Valid Last Will & Testament in New Mexico:
- A holographic Will (a Will that is handwritten by the testator)
- Oral Wills
- An unwitnessed Will