Ask the Probate Judge—Will Witnesses and POD Accounts
Rudd, appeared May 13, 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: Please discuss the general subject of will witnesses. For example, what if a witness dies, becomes mentally ill or unstable, moves and cannot be located, becomes estranged, becomes personally vindictive, and, as a potential heir, decides to challenge the will? G.C., Albuquerque
The basic answer is that if you followed New Mexico law when you signed your will, none of the issues you raise should affect your will.
New Mexico states, "A will which appears to have the required signatures and which contains an attestation clause showing that requirements of execution…have been met shall be probated without further proof." The attestation clause says the testator and two witnesses were all together and watched each other sign the will, that the testator signed willingly, and that the testator was eighteen or older, of sound mind, and under no constraint or undue influence.
If the attestation clause and proper signatures of you and your two witnesses are part of your will, there is no need to locate the witnesses when a testator dies. Therefore, it should not matter if a witness dies, moves, loses capacity, or is no longer congenial towards you.
A witness, potential heir, or any other person cannot challenge a will during the testator's lifetime, only after death.
If your will does not include an attestation clause, a judge who reviews the will after you die can ask for sworn, notarized statements or affidavits from anyone with knowledge of the circumstances of the will's execution. The people who provide the affidavit may or may not be witnesses to the will.
If your will lacks an attestation clause, consider signing a new will with different witnesses. I would recommend hiring a reputable attorney to help you.
Q: Some of my C.D.'s have one of my children listed as a POD beneficiary, and some have all three of my children listed. A bank employee with 40 years experience said on death whoever's name is on the C.D. can come to the bank's office and collect. Is this correct and should I have all three names on all C.D.'s? F.B., Albuquerque
Your question illustrates why it is important to understand the effect of naming beneficiaries on your assets. New Mexico law allows an account owner to name "payable on death" (POD) beneficiaries on bank accounts and certificates of deposit (C.D.'s).
The bank employee is correct. Whoever is named as the beneficiary on the C.D. is entitled to the C.D. upon your death. He or she has no obligation to share the C.D. with the other two children. If your children know your intent is that they split all C.D.'s equally, they may have a moral obligation to do so. But the law does not require this.
You can either name all three children as POD beneficiaries on all C.D.'s, or, as the C.D.'s mature, you could split them into thirds, naming one child as a beneficiary on each C.D. If one of your children were to predecease you, you should review and update beneficiaries at that time.
© 2004, Merri Rudd & Albuquerque Journal, All Rights Reserved