Ask the Probate Judge—Recording Wills & Holographic Wills
Rudd, appeared February 19, 2004, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Q: Once I complete my will, is it true that it must be recorded? A paralegal helping me with my will insists that the will must be recorded. Anonymous
You have identified Will Myth Number 13: "A will must be recorded." This is untrue. No New Mexico law requires a will to be recorded. Wills do not even need to be notarized to be valid.
Recording a will during your lifetime would force you to give up your privacy and reveal the contents of the will to anyone conducting a search of the public record.
Recording means presenting the original document to the county clerk's Recording and Filing Office. The clerk makes a photocopy of the document and records the document into the public records. There is a $9 charge to record the first page and $2 for each page thereafter. Once a document is recorded, it is available to the public to inspect and/or copy.
I do not know why one would want to record one's will. Most people feel that the contents of their wills are private, and many do not even reveal the contents during their lifetimes.
By the way, if a paralegal is preparing your will without being supervised by an attorney licensed in New Mexico, he or she is violating New Mexico's laws against practicing law without a license.
Q: My mom did a one-page handwritten will that she signed in Arizona. No one witnessed her will, but it is notarized. She moved to New Mexico years ago. Would her will be valid here?
Handwritten, unwitnessed wills, called "holographic" wills, are not valid if made in New Mexico. However, Arizona happens to be one state that recognizes holographic wills. Arizona's law reads, "A will…is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator."
New Mexico has a law that says, "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." Translated into plain English, this means if you make a valid will in another state, we will honor it here.
Therefore, a holographic will made in Arizona should be valid in New Mexico because your mother created the holographic will in a state that allows them. If the notary seal on your mother's will says, "State of Arizona," this is further proof of where the will was created.
New Mexico, and every other state, generally honors wills from other states if they were valid in the state where they were created.
Bottom line: your mother's one-page Arizonan holographic will should be accepted in a probate proceeding in New Mexico.
© 2004, Merri Rudd & Albuquerque Journal, All Rights Reserved