Ask the Probate Judge—More Wills Questions
Rudd, appeared March 4, 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: I enjoy your column in the Albuquerque Journal. What needs to be in a will that can be drawn up by the individual without a lawyer getting involved, since I don't have much money? Also, do I need to state that the will supersedes all previous wills since my last one had my ex-wife as the sole benefactor? M.M.
Yes, it is an excellent idea to state that your new will supersedes all prior wills. For example, the opening paragraph might read, "I, __________, of ___________ County, State of New Mexico, being of sound mind, make, publish, and declare this to be my Last Will and Testament, hereby revoking all former wills and codicils made by me."
The contents of wills vary depending on who prepares them. Common provisions of a will include:
Introductory statement, as set out above.
Statement of family history, listing spouses, if any, and children by name.
Appointment of a personal representative and an alternate personal representative.
Summary of the personal representative's duties and powers.
Directions on how estate debts will be paid.
Instructions about family and personal property allowances (if you are married or have minor or dependent children).
Specific gifts to people, such as "I devise $100 to my friend Miguel Murphy." Your will should state clearly what happens to Miguel Murphy 's gift if he dies before you.
Reference to a list of tangible personal property.
Residuary clause, i.e., who gets the bulk of your estate and what happens to each gift if one of your beneficiaries dies before you.
Signature and date lines for you and two witnesses.
Self-proving clause with signature lines for you and two witnesses and, optionally, a place for a notary public to sign and stamp or seal the will.
The University of New Mexico's law school library has samples of wills. An individual is allowed to prepare his or her own will. However, lack of familiarity with legal terminology, drafting, and procedure could create problems with do-it-yourself wills.
Q: My dad read a recent article from the Albuquerque Journal and he told me to email you his question. Can a person 18 years old be named as the Personal Representative of someone's estate, or do they have to be 21 years old? R.R.
In New Mexico a person who is 18 may serve as the personal representative of an estate. This is because 18 is the "age of majority." Once you turn 18, you can register to vote, make a will, serve as personal representative, and enter into contracts. In New Mexico, however, you cannot legally drink alcohol until you are 21.
Personal representatives should have good organizational and math skills and should be honest, diligent, and fair. For more information on the duties of the personal representative, visit the Probate Court web site, www.bernco.gov/probate_judge, and click on "Personal Representative Duties" on the right hand side.
© 2004, Merri Rudd & Albuquerque Journal, All Rights Reserved