Ask the Probate Judge—Four Readers Writing
Rudd, appeared March 15, 2007, 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: Should a New Mexico will be witnessed by two people, as well as notarized by a notary? Thank you. F.H.
Thanks for asking an easy question for a change! 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 in the presence of you and each other.
The notary verifies the identities of those signing the will and administers an oath to them. Many attorneys notarize wills that they draft. But notarization is optional, not required.
Q: I was examining my 8-year-old will as you suggested and noticed that the notary public's commission has now expired. Does that affect the validity of the will? It is a New Mexico will. D.F.
I see this situation often. Suppose a will was signed and notarized on April 1, 1988. The notary's commission expired on September 1, 1991. The will is never updated, and the testator dies.
As long as the notary's commission was current on the date the will was signed, the notarization should be valid. Since notarization is optional, the will should be valid even if it was notarized improperly, as long as the requirements listed above were met.
Q: Following what we considered a careful investigation, we set up a trust for my disabled brother with a bank and myself as co-trustees. The bank representative, who was highly capable and attentive, arranged investments (with my approval) that paid off very well. We had an excellent relationship with what I considered outstanding results. After a period of time the original bank representative was promoted and no longer served the trust department. The new representative was a disappointment in many ways. The investments as originally set up continued to perform well but active follow-through was sometimes lacking. When my brother died, the trust was terminated, but not with the timing and distribution of assets I had agreed upon with the bank. One reason for selecting an institutional fiduciary is long-term stability. In this case it didn't work out that way. M.J., Albuquerque
Your story illustrates the proverbial "other side of the coin." I have outlined the pros and cons of corporate trustees and individual trustees in previous columns. Your story reminds us that even the success of a corporate trustee arrangement depends upon the individuals who work for the corporation.
Q: I already have a transfer on death deed to both of my daughters. I want to take one daughter off and create another deed. The other daughter will be spending her life in prison. What do I need to do to proceed with the new deed? Anonymous
New Mexico's transfer on death deed (TODD) law states that, "A designation of the grantee beneficiary may be changed by the record owner at any time prior to the death of the record owner, by the record owner executing, acknowledging and recording a subsequent transfer on death deed. The signature, consent or agreement of or notice to the grantee beneficiary or beneficiaries is not required. A subsequent transfer on death beneficiary designation revokes a prior designation to the extent there is a conflict between the two designations." Just make sure that you record the new TODD during your lifetime.
© 2007, Merri Rudd & Albuquerque Journal, All Rights Reserved