Ask the Probate Judge—Pop Quiz for Loyal Readers
Rudd, appeared April 1, 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.
Today is April Fool's Day, but this is no joke. Now that you have been loyal readers for almost three years, it's time to test what you've learned!
Take the following pop quiz. The answers appear at the end of the column.
True or False?
In New Mexico…
1. A videotaped will is valid.
2. A notarized will with no witnesses' signatures is valid.
3. A will with two witnesses' signatures, but no notary, is valid.
4. A handwritten will with two witnesses' signatures is valid.
5. A 12-year-old can make a will.
6. A beneficiary of a will can serve as a witness.
7. Having a will avoids probate.
8. Joint tenancy property is part of the decedent's probate estate.
9. Payable on death accounts are part of the decedent's gross estate.
10. A surviving joint tenant automatically receives joint tenancy property by right of survivorship.
11. Dying intestate (without a valid will) means the state gets everything.
12. Making your own will is an excellent idea.
1. False, in New Mexico wills must be in writing.
2. False, you cannot make holographic (unwitnessed) wills in New Mexico, although we might accept a holographic will from another state that recognizes them.
3. True, notarization is optional, not required. Remember that in New Mexico, the testator and two witnesses must all stay together and watch each other sign.
4. True, a will must be in writing, but not necessarily typewritten.
5. False, you must be 18 to make a will.
6. True, having interested people witness a will may not always be wise, but New Mexico law allows it.
7. False, it depends on how the decedent's property is titled as to whether a probate is necessary.
8. False, the probate estate is property that requires a court proceeding to pass clear title to the beneficiaries. Assuming one joint tenant is still alive, the property should pass automatically without a court probate proceeding.
9. True, everything the decedent owns at death, no matter how titled, is part of his or her gross estate.
10. True, no court proceeding should be necessary at the death of the first joint tenant.
11. False, New Mexico's laws on intestate succession set out which family members (in a particular order) should receive a decedent's intestate property. Only if absolutely no relatives can be found would a decedent's estate escheat to the state.
12. False, in my opinion, because too many things can go wrong, but others may disagree on my answer to this question.
How did you do? If you answered 10-12 questions correctly, you should apply to law school; 7-9, you did pretty well; 6 or less, you're not an April fool, but you had better refresh your memory by reviewing my old columns at www.bernco.gov.
© 2004, Merri Rudd & Albuquerque Journal, All Rights Reserved