Ask the Probate Judge—Will Myths 1-5, Part 1 of 2
Rudd, appeared November 20, 2003, 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.
Here are five common misconceptions about wills, called "will myths." Warning: the following are myths; they are generally not true!
Myth 1. An unnotarized will is invalid. New Mexico law does not require a notary's signature and seal on a will. The only requirements for a valid will in New Mexico are that it be: 1) in writing; 2) signed by you or signed by someone directed by you and in your presence; and 3) signed by two witnesses who both sign in the presence of you and each other. Notarizing a will might keep you from having to locate witnesses if someone later contests the will, and most attorneys notarize wills that they draft. But including a notarized, self-proving clause in a will is optional, not required.
Myth 2. A will from another state is invalid. New Mexico law states that a will executed in another state or country before moving to New Mexico is valid as long as the will was valid in the state or country in which the will was executed. If you wish to change your will or take advantage of New Mexico laws governing wills, you may still choose to create a new will in New Mexico.
Myth 3. A handwritten will is invalid. A handwritten will is valid in New Mexico as long as it is properly executed and witnessed as set out in Myth 1 above. A properly witnessed, handwritten will is different from a holographic will that is handwritten and signed by you in the absence of witnesses. Holographic wills are generally invalid in New Mexico. A holographic will could be accepted in New Mexico, however, if, before moving to New Mexico, you executed the holographic will in a state where holographic wills are valid.
Myth 4. Relatives or beneficiaries of the will cannot serve as witnesses to the will. In New Mexico relatives or other interested persons may witness your will. An interested person is someone who stands to inherit under the terms of the will. However, using disinterested witnesses is advisable. Many attorneys do not allow interested witnesses to sign, even though the law permits it.
Myth 5. If you have a will, your estate does not need to be probated. Will or no will, if your estate contains assets worth over $30,000 that are titled in your sole name or as "tenants in common," those assets need to be probated after your death. Probate is a court proceeding to appoint a personal representative to distribute your assets to your beneficiaries. A will provides instructions to the personal representative about how to distribute the probate assets. As prior columns have discussed, assets held in joint tenancy, payment on death (POD) accounts, transfer on death (TOD) accounts, other beneficiary accounts, transfer on death deeds, and trust property pass automatically to the named survivor or beneficiary. A will does not affect these types of property since they pass "outside" of the will without a court probate proceeding.
Next column: Myths 6 through 10.
© 2003, Merri Rudd & Albuquerque Journal, All Rights Reserved