New Mexico Last Will and Testament

Introduction

Key Things to Know

1. 1

   A last will and testament is a legal document that states who receives your property and who administers your estate after you die. It can also name a guardian for minor children.

2. 2

   New Mexico requires two witnesses. NMSA Section 45-2-502 requires the will to be signed by at least two individuals, each of whom signed in the presence of the testator and of each other after witnessing the testator's signing.

3. 3

   An interested witness does not void anything. NMSA Section 45-2-505 provides that the signing of a will by an interested witness does not invalidate the will or any provision of it, so New Mexico has no rule that voids a beneficiary-witness's own gift.

4. 4

   A self-proving affidavit is available and needs a notary or officer. NMSA Section 45-2-504 lets you make the will self-proved with sworn affidavits of the testator and witnesses before an officer authorized to administer oaths, so the will can be admitted to probate without locating the witnesses later.

5. 5

   New Mexico does not recognize holographic wills. NMSA Section 45-2-502 has no exception for a will in the testator's own handwriting; a handwritten will executed in New Mexico still needs two witnesses to be valid.

6. 6

   The will itself needs witnesses, not a notary. No notary is required to execute a valid New Mexico will; a notary or other officer is needed only if you choose to add the optional self-proving affidavit described above.

7. 7

   Minimum age is 18, or an emancipated minor, with sound mind. NMSA Section 45-2-501 lets an individual 18 or older, or an emancipated minor, who is of sound mind make a will. Revoke a prior will with a later will, another signed and witnessed document that expressly revokes it, or a revocatory act such as burning, tearing, canceling, obliterating, or destroying the will with intent to revoke it, under NMSA Section 45-2-507.

New Mexico Requirements for Last Will and Testament

• Sign in Writing With Two Witnesses Present

  New Mexico requires the will to be in writing, signed by the testator, and signed by at least two individuals, each of whom signed in the presence of the testator and of each other after witnessing the testator's signing, under NMSA Section 45-2-502.

• Any Generally Competent Individual May Witness

  Under NMSA Section 45-2-505, an individual generally competent to be a witness may act as a witness to a New Mexico will. New Mexico has no separate age requirement for witnesses beyond this general competency standard.

• An Interested Witness Does Not Void Any Gift

  Under NMSA Section 45-2-505, the signing of a will by an interested witness does not invalidate the will or any provision of it. New Mexico has no purging statute that voids a beneficiary-witness's own gift, unlike some other states.

• No Notary Is Required for the Will Itself

  A notary is not required to make a New Mexico will valid; two witnesses satisfy NMSA Section 45-2-502. A notary or other officer authorized to administer oaths is needed only if you add the optional self-proving affidavit under Section 45-2-504.

• Self-Proving Affidavit Is Optional but Needs an Officer

  NMSA Section 45-2-504 lets you make the will self-proved with sworn affidavits of the testator and witnesses before an officer authorized to administer oaths, either at the same time as signing the will or attached later. This avoids having to locate witnesses at probate, but is not required for the will itself to be valid.

• Holographic (Handwritten, Unwitnessed) Wills Are Not Recognized

  New Mexico has not adopted a holographic-will exception. NMSA Section 45-2-502 requires signing by at least two witnesses with no exception for a will entirely in the testator's own handwriting.

• Minimum Age and Capacity to Make a Will

  Under NMSA Section 45-2-501, an individual 18 years of age or older, or an emancipated minor, who is of sound mind may make a will. New Mexico courts also consider whether the testator understood the act of making a will, the extent of the estate, and the natural objects of their bounty.

• Revoke With a Later Will, Document, or Act

  Revoke a New Mexico will by executing a subsequent will that revokes it expressly or by inconsistency, by executing another document made in the manner required for a will or self-proving affidavit that expressly revokes it, or by a revocatory act such as burning, tearing, canceling, obliterating, or destroying the will with intent to revoke it, under NMSA Section 45-2-507.