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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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Codicils to Wills

1:47 PM
Merri Rudd

Question: Now that my son is over 21, I would like to have him replace the secondary personal representative designated in my will. (My husband and I have mirror wills.) Must I have a new will drawn up or is there a simpler way to make the change? R.P., Albuquerque


You’re correct that a 21-year-old can serve as the personal representative of an estate in New Mexico. So can an 18-year-old (18 being the age of majority here), but I have not seen that happen yet. Designating several choices of personal representatives is wise, in case one declines to serve after finding out how much work is involved!

Often a person has a valid will and just wants to modify the appointment of a personal representative, change a beneficiary, or indicate a change in marital status. Some people take their original will, cross out the old language, and write the changes on the original will. Don’t do this! These changes would not be valid because you did not execute them in the presence of witnesses. The beneficiaries of the will would probably face a long and expensive court procedure to straighten things out.

The correct way to change a will is to sign a codicil (amendment) to the will. The codicil should: (1) identify the will that is being amended, including the date the will was signed; (2) state your name and domicile; (3) specify in detail what changes are being made; and (4) state which sections of the will remain in effect.

The codicil must be executed in the same manner as a will. This means that you must sign and date the codicil in the presence of two witnesses who also sign the codicil. New Mexico law does not require the codicil to be notarized, but attorneys (or their staff) usually notarize wills and codicils that they prepare.

If you have several changes, preparing a codicil may take as much time as preparing a new will. If you already have several codicils to your original will, you may prefer to create a new will instead of yet another codicil. New Mexico law does not prohibit a person from adding a codicil to a will that was prepared and executed in another state. However, some attorneys prefer to prepare a new will rather than update a will made in another state.

Your husband’s will does not have to match yours unless your wills contain language about being irrevocable unless both of you agree to changes. So if he doesn’t want to change his personal representative, you probably still can.

© 2001, Merri Rudd & Albuquerque Journal, All Rights Reserved

Appeared August 23, 2001 Albuquerque Journal, Business Outlook

Reprinted with permission


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