Every state has a similar process for making wills, but there are key differences—each U.S. state has its own specific laws regarding wills. While most of the general requirements are very similar, it is important to know what the state statutes require for your particular state. Otherwise, you risk that your will does not meet these requirements and is not recognized as valid. When you make a will in New Mexico, double check that you satisfy the requirements to be valid. If you make a will online, be sure to use an online will making service with a template that is customized for New Mexico.
Can I Make a Will Online in New Mexico?
Yes, you can make a will online in New Mexico. To make an online last will and testament, we recommend USLegalWills.
When you make a will online, you have to follow the same requirements as when you make a will in New Mexico any other way. Here are those requirements:
- You (known as the Testator) must be at least 18 years old and be of sound mind.
- You must sign your will in front of two witnesses, and
- Your witnesses must sign it in front of you and each other.
Your will also must be in writing. Some states allow digital-only wills (wills made online, signed, and witnessed all electronically without making a paper copy); however, most states require a hard copy with physical signatures. When you make a will online in New Mexico, you must print it out. The state of New Mexico does not currently allow digital-only wills.
Your witnesses can be anyone “generally competent” to act as a witness (meaning they are able to testify in court if needed); while having an “interested party” (someone who is also a beneficiary in the will) as a witness does not invalidate a will in New Mexico, it is always recommended to have your witnesses be “disinterested parties” to avoid any potential legal complications.
Does New Mexico Require a Notarized Will?
No, you do not have to notarize a will for it to be valid in New Mexico. However, like most states, New Mexico allows for a will to be “self-proved.” Once a will is “self-proved,” it speeds up the probate process because it allows the court to quickly validate the will (often without requiring the witnesses to testify before the court to the authenticity of the will).
To make a will “self-proved” in New Mexico, you and your witnesses make sworn statements (affidavits) in front of a notary public. It is these affidavits that are notarized and attached to the will; it is not the will itself that gets notarized. The affidavits have a “statutory form” that the document must substantially follow (you can find an example of the form here).
You and your witnesses can do this when you sign the will, or it can be done at any other time. It is a good idea to make your will “self-proved,” as those affidavits act as if you and your witness have testified to the authenticity of the will in front of the court.
Can I Name an Executor in New Mexico?
Yes, you can name an executor when you make a will in New Mexico (online or otherwise). An executor of the estate is the person appointed to settle the estate, making sure that the will is followed. The duties of an executor range from filing the will in the probate court to locating assets and managing their distribution. It is wise to name an executor in your will; otherwise, the probate court will appoint someone (which can cause delays in the probate process).
Here are the requirements for an executor in New Mexico:
- The executor must be at least 18 years old, and
- The executor must be of sound mind (meaning, not judged incapacitated by a court).
Many states prohibit those with felony convictions from acting as an executor of an estate, but New Mexico has no laws that prohibit this. You are free to name any competent adult to serve as your executor. It is a good idea to choose someone you know well and you trust—this person will have many responsibilities during the process of settling your estate; you should discuss what being an executor entails with the person you are choosing before you name them, making sure that they are up to the task.
There are no special requirements to name an out-of-state executor in New Mexico. However, for practical purposes, you might want to consider naming someone who lives nearby. The executor might have to handle day-to-day matters for weeks or even months while settling the estate.
Do I Need an Attorney to Make a Will in New Mexico?
No, an attorney is not required to make a will in New Mexico. You can make a will using an online will making service without needing to hire an attorney, as long as you follow all the legal requirements state law has mandated for a will to be recognized as valid. Of course—if you have a substantial estate or a more complex will, it is always best to consult an attorney (an estate planning attorney in specific). Online will making is a good option, though, if you have a simple estate and a straightforward will. You want to be sure to use an online will making service that offers a template customized for New Mexico, and you want to be sure you follow the steps required to finalize your will. If you do not finalize your will in the correct way, the court may not recognize it as valid.
What Types of Wills Are Valid in New Mexico?
Made online or otherwise, any type of will which meets the state-specific requirements is valid in New Mexico.
Can I Make a Holographic Will in New Mexico?
By definition, a holographic will is a handwritten last will and testament signed only by the person making the will (the Testator) with no other attesting witnesses. In New Mexico, holographic wills are not considered legally binding unless they were made and executed in a jurisdiction that recognizes holographic wills. Which means that, unless they are made in another state that recognizes holographic wills, any holographic will made in New Mexico is not recognized as valid.
This is not because the will is handwritten but because the basic requirements for a valid will in New Mexico are that it must be: 1) in writing, 2) signed by the Testator, and 3) signed by two attesting witnesses. Holographic wills made in New Mexico are not valid because they do not meet the requirement of having two attesting witnesses.
Although you can technically write out your will by hand, sign it in front of two witnesses, have them sign it, and it may be recognized as valid—there are other issues that may cause the court to reject the will. Often, people tend to leave out important provisions, use unclear language, or otherwise make an error that causes the will to be rejected. It is better to use an online will making service that has specific templates designed for the state to avoid potential legal complications.
Can I Make a Nuncupative or Video Will in New Mexico?
A nuncupative will is an oral will, sometimes left on video. Nuncupative wills are generally considered as an emergency or last resort type of will; if someone is facing imminent death and does not have a written will, a nuncupative will is better than leaving no instructions at all.
However, much like holographic wills, nuncupative wills are not recognized in New Mexico. A nuncupative will does not meet any of the three basic requirements for will made in the state to be recognized as valid; a nuncupative will is not in writing, signed, or witnessed, and therefore the court will not consider one legally binding in New Mexico.
If all your heirs and beneficiaries agree to the terms left in a nuncupative will, the court may allow the estate to be settled in the way you intended. However, the court will not enforce the terms itself. To avoid legal complications and a lengthy probate process, it is best to write and execute a will following the state requirements.
How Is a Living Will Different from an Online Will in New Mexico?
A living will and a last will and testament, made online or otherwise, are two separate legal documents. A living will, also known as an advance directive, is a legally binding document which gives instructions on various medical decisions and end-of-life care wishes. A last will and testament, on the other hand, is a legally binding document which contains matters regarding distribution of property, guardianship for minors, and other such pertinent instructions regarding a person’s estate. Whether made online or not, a last will and testament is not the correct place to leave medical directives or end-of-life care. However, you can make both a last will and testament and a living will online. You can read more about living wills in New Mexico here, and you can find a sample template for the state here.
In New Mexico, these are the requirements for a living will:
- You must be at least 18 years of age and of sound mind.
- It can be written or oral, but it must be dated and witnessed by 2 adults.
- It only goes into effect when the patient becomes unconscious and will not regain consciousness to a reasonable degree of medical certainty.
Why Do I Need to Make a Will Online in New Mexico?
When someone dies intestate, or without a will, there are laws that determine what happens. These are known as intestacy laws, and each state has its own. In addition to the court appointing guardians for any minor children and naming an executor for your estate, any property will then be divided between surviving family members according to the intestacy distribution laws of New Mexico. If you are married without children, your spouse will inherit everything. If you have children but are not married, your children inherit everything. If you have no spouse and no children but your parents are still living, they inherit everything. This list continues until all options are exhausted. Property will often be held up in the probate court process for months at a time. And if the court determines you have no surviving family, the state will take ownership of your property.
If you have children, especially minor children, or if you own property, or if you simply want to decide who gets what—these are all reasons why it is important to make a will in New Mexico.
What Can I Include in an Online Will in New Mexico?
Any provision you can include in a will, you can include in a will you make online. For example, you can include the following in a will you make in New Mexico:
- An executor for your estate.
- Guardians for minor children.
- A trusted person to oversee any property left to minor children.
- Distribution of property.
- Distribution of family heirlooms.
- Distribution of personal or sentimental items.
- Property or gifts to specific family members, friends, organizations, or charities.
- A trusted person to care for remaining pets, as well as a “pet trust” that allows for financial assistance for caring for any pets.
You can also include specific conditions regarding the distribution of property (such as, beneficiaries can only access their inheritance at certain ages or in monthly stipends). Be sure not to include any potentially illegal conditions (such as requiring your children to divorce their spouse, or that they must get married first), as doing so may open up the possibility for your will to be contested. It is best to consult an attorney if you want to include more complex conditions.
What Should Not Be Included in a Will in New Mexico?
As mentioned, a last will and testament is not the right place for designating end-of-life care or funeral instructions. This is because, when a person dies, the funeral arrangements are usually made immediately. It is not until after the funeral that the will is read and the process for settling the estate begins. As such, your family might not know about your wishes until after the funeral. Medical directives and end-of-life care stipulations also have different requirements than a will for them to be legally binding.
For medical directives and end-of-life care, you want to create a living will. Be sure to let your family know that you have a living will, and you also want to let your doctors know as well. Make copies of it to give to trusted people and to your medical providers.
For funeral instructions, you do not need to create a formal document. You can simply talk with a family member about your desires—or you can write an informal document which describes what you wish for your funeral arrangements, so that your family has something to refer to when planning your funeral. Be sure to make copies, giving them to the executor of your estate and other trusted family members.
Can I Change or Revoke an Online Will Made in New Mexico?
Whether made online or not, when executed in the proper method, a will is a legally binding document. However, you can change or revoke a will at any time.
In New Mexico, here are ways to change or revoke a will:
- By performing a revocatory act to destroy it physically (such as burning, shredding, tearing, or otherwise destroying it with the intent to revoke it).
- By ordering someone else to destroy it in front of you (with the intent that this revokes it).
- By making a new will that says it revokes the old will or that contains contradictory terms to the old will, or
- By making another document stating you revoke the will, following the same formalities used to finalize your original will.
It is always best to update your will after any major life change. Marriage, divorce, birth or adoption of a child—any change of circumstance in your family or your financial life—means you should revisit your will. Often, it is best to revoke your old will and write a new one. If you have significant changes in your assets, for instance, or if you relocate to a new state or country, it is better to write a new will. However, if you only have minor changes or additions, you can create what is called a codicil. A codicil is an amendment containing the changes, which you then must finalize in the same way as you did your will.
How Do I Finalize an Online Will in New Mexico?
When you make a will in New Mexico, you want to take these steps to finalize it:
- Sign it in front of two witnesses, and
- Have them sign it in front of you and each other.
If you make your will online, you must print it out. New Mexico requires a paper copy with physical signatures.
To make a will “self-proved” in New Mexico, you and your witnesses make sworn statements (affidavits) in front of a notary public. You then attach these affidavits to your will.
Be sure to consider these special considerations in New Mexico:
- Divorce (or annulment) automatically revokes any language in your will that leaves property to your ex-spouse (as well as any of your ex-spouse’s relatives). If your ex-spouse was your named executor, that is automatically revoked as well. If you divorce and still want to leave property to any of your former spouse’s relatives, be sure you revisit your will. Consider writing a new will after divorce, or consult an attorney if you are unsure what the impact of the divorce has on your will.
USLegalWills is our recommendation for an online last will and testament. Their pricing is fair and the process of making an online will is easy. You can also create a Living Will. USLegalWills offers a free service to document funeral wishes and save final messages for loved ones.