Ask the Probate Judge-Will Requirements
By Merri Rudd, appeared October 18, 2001 Albuquerque Journal, Business Outlook
Reprinted with permission
Q: Does preparation of a will have to involve an attorney? My wife and I have "mirror wills." I would like to prepare new wills utilizing examples found on the Internet. I should have two witnesses, I think? T.L.
This is America, land of many freedoms. You are free to draft your own will and other legal documents without an attorney’s help. In New Mexico you may not create legal documents for anyone else unless you are a licensed attorney here.
New Mexico law allows "an individual eighteen or more years of age who is of sound mind" to make a will. People "of sound mind " should know what a will does, what kind of property they own, and whom they want to inherit their assets.
To be valid in New Mexico, a will must be in writing and witnessed by two competent people. New Mexico law requires that the witnesses be present to watch you sign and date the will. The witnesses must also sign the will in your presence and in the presence of each other. You cannot sign your will and take it around later to your neighbors to sign as witnesses. Notarization is optional, but often occurs if an attorney prepares your will.
This may seem simple, but writing your own will may not be wise. Wills can be invalid for various reasons. Case law is full of stories of people who drafted wills that were so unclear their wishes could not be carried out.
Usually people write their own wills to save time and money. Sometimes, however, the survivors end up investing time and money trying to untangle the decedent's documents and instructions. Knowledge of community property law, titling of assets, tax laws, tangible personal property, family allowances, and other estate planning issues is essential in drafting a will. Knowing what words to use and how to designate alternate personal representatives and devisees is also important.
Will forms are available at office supply stores, through mail order houses, and from the Internet. These forms may or may not comply with New Mexico law. The University of New Mexico law library also has books that contain wills.
Hiring a reputable attorney to prepare your will should not be that expensive. The more assets you own, the more sense it makes to have an attorney examine your estate and prepare your will. The final decision is yours, but considering all of your options before proceeding is prudent. At least if an attorney prepares your will, your heirs will have someone to blame other than you if something goes wrong.
© 2001, Merri Rudd & Albuquerque Journal, All Rights Reserved