the Probate Judge—Finishing Your Legal Documents
Rudd, appeared January 13, 2005, 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.
Several attorneys and paralegals have contacted me during my recent sabbatical
from this column to suggest that I write about executing legal documents and
funding trusts. One law firm reported that they have numerous instances where
the attorney drafts a will or trust for a client, but the client never comes
back to sign the document. In many instances, the client has paid for the
document but not signed it. So the document has no effect.
When it comes to signing legal documents, "Always put off until tomorrow
what you could do today" is many folks' motto. People cite numerous reasons
for not making a will, "I'm healthy," "I don't want to think
about it," "I haven't gotten around to it yet," "If I
sign my will, I'm afraid I'll die, "I don't like attorneys," "I
don't own that much," "I don't have time."
Make the time!
An attorney cannot sign a will or trust on behalf of a client. With limited
exceptions, you must sign the documents yourself. Pick a day when you are
"of sound mind," which means you understand what you are signing,
what you own, and who your heirs are.
Perhaps you have created a handwritten or typed letter expressing your dying
wishes. New Mexico law does not recognize unwitnessed wills created in this
state as valid. Regular readers of this column already know that a will created
in New Mexico must contain your signature and the signatures of two witnesses,
all of whom gather together to watch each other sign.
Some people leave assets not only to family members, but also to friends,
religious organizations, schools, or charities. To leave assets to non-family
members, you must have a will or trust. Putting your wishes in writing through
a valid will or trust helps to ensure that your wishes are known and honored
after your death. Be sure your personal representative or trustee knows where
to find the original will or trust.
Another caveat: once you sign a trust (in the presence of a notary public),
you must also transfer all of your assets into the name of the trustee
of the trust. This takes more time and effort, but is mandatory if you want
your new trust to transfer your property at death.
Those who have not even started the process of estate planning may be happy
to know that libraries around the state, including Albuquerque branches, now
have the new 4th edition of my book Life Planning in New Mexico in
their collection. Check it out.
The moral of this New Year's epistle is: get your docs in a row! Do not delay.
Do not make any more excuses. Pick up the phone, call your attorney, arrange
a time to sign those documents, fund your trust, and then breathe a sigh of
relief while patting yourself on the back.
2005, Merri Rudd & Albuquerque Journal, All Rights Reserved
Send your questions to Judge Rudd at P.O. Box 36011, Albuquerque, N.M., 87176-6011,
or e-mail firstname.lastname@example.org. The judge cannot answer questions about specific