Last Will and Testament for a Single Person with Minor Children
Note: This summary is not intended to be an
all-inclusive discussion of the law of wills in New Mexico, but does provide
basic and other information. This summary does not discuss handwritten
wills.
Who may make a will: An individual eighteen
or more years of age who is of sound mind may make a will. 45-2-501.
Execution: A will must be in writing, signed
by the testator and signed by at least two individuals, each of whom signed
in the presence of the testator and of each other after each witnessed
the signing of the will. 45-2-502.
Witnesses: An individual generally competent
to be a witness may act as a witness to a will. The signing of a will by
an interested witness does not invalidate the will or any provision of
it. 45-2-501.
Self-Proved Will: A will may be simultaneously
executed, attested and made self-proved by acknowledgment thereof by the
testator and affidavits of the witnesses, each made before an officer authorized
to administer oaths under the laws of the state in which execution occurs
and evidenced by the officer's certificate, under official seal. The will
you have located contains the required form for New Mexico. 45-5-504.
Foreign (other state) Choice of Law: A
written will is valid if executed in compliance with New Mexico law, or
if its execution complies with the law at the time of execution of the
place where the will is executed or of the law of the place where at the
time of execution or at the time of death the testator is domiciled or
is a national. 45-2-506.
Revocation: A will or any part thereof
is revoked:
(1) by executing a subsequent will that revokes the previous will
or part expressly or by inconsistency; or
(2) by performing a revocatory act on the will if the testator
performed the act with the intent and for the purpose of revoking the will
or part or if another individual performed the act in the testator's conscious
presence and by the testator's direction. For purposes of this paragraph,
"revocatory act on the will" includes burning, tearing, canceling, obliterating
or destroying the will or any part of it. A burning, tearing or canceling
is a "revocatory act on the will", whether or not the burn, tear or cancellation
touched any of the words on the will. 45-2-507.
Separate Written Instrument - Personal Property:
A will may refer to a written statement or list to dispose of items of
tangible personal property not otherwise specifically disposed of by the
will, other than money. To be admissible under this section as evidence
of the intended disposition, the writing must be signed by the testator
and must describe the items and the devisees with reasonable certainty.
The writing may be:
A. referred to as one to be in existence at the time of the testator's
death;
B. prepared before or after the execution of the will;
C. altered by the testator after its preparation; or
D. a writing that has no significance apart from its effect on
the dispositions made by the will. 45-2-513.
Contract to Make a Will: A. A contract
to make a will or devise or not to revoke a will or devise or to die intestate,
if executed after the effective date of this article, may be established
only by:
(1) provisions of a will stating material provisions of the contract;
(2) an express reference in a will to a contract and extrinsic
evidence proving the terms of the contract; or
(3) a writing signed by the decedent evidencing the contract.
B. The execution of a joint will or of mutual wills does not create
a presumption of a contract not to revoke the will or wills. 45-2-514.
Deposit of Will: A will may be deposited
by the testator or his agent with the clerk of any district court in New
Mexico for safekeeping pursuant to rules of that court. The will shall
be kept confidential. During the testator's lifetime, a deposited will
shall be delivered only to him or to a person authorized in writing signed
by him to receive the will. A conservator may be allowed to examine a deposited
will of a protected testator under district court procedures designed to
maintain the confidential character of the document to the extent possible
and to assure that it will be resealed and left on deposit after the examination.
Upon being informed of the testator's death, the district court clerk shall
notify any person designated to receive the will and deliver it to him
on request, or the court clerk may deliver the will to the appropriate
court. 45-2-515.
