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Elizabeth Fisher Attorney at Law

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Frequently Asked Questions

These answers are based on New Mexico law, but you may wish to consult an attorney.

Who can make a will in New Mexico? What is required?

An individual eighteen or more years of age who is of sound mind may make a will. A will must (A) be in writing, (B) signed by the testator (the person making the will ) or in his or her name by some other individual in the testator's conscious presence and by the testator's direction and (C) signed by at least two individuals, each of whom signed in the presence of the testator and of each other after each witnessed the signing of the will as described above.
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Will New Mexico courts recognize a holographic will
(a hand-written will)?

No, New Mexico will not recognize a hand-written will made in New Mexico that does not comply with the statutory requirements set out in the answer to the first question.
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Will New Mexico recognize my will executed in another state?

A written will is valid if executed in compliance with New Mexico law or if its execution complies with the law at the time of execution of the place where the will is executed or of the law of the place where at the time of execution or at the time of death the testator is domiciled or is a national.
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I have recently been divorced. What will happen if I die before I change my will, my insurance or my pension?

Except as otherwise provided by express terms of a governing instrument, a court order or a contract relating to the division of the martial estate made between the divorced individuals before or after the marriage, divorce or annulment, the divorce or annulment of a marriage revokes any revocable disposition or appointment of property made by a divorced individual to his former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse. It also revokes the nomination of the spouse or a relative of the divorced individual to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent or guardian. Also the interests of former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship are transformed to tenancies in common. The statute in its entirety can be found at §45-2-804 of the Uniform Probate Code.
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What will happen to my property if I die without a will?

If you die without a will, your property will be distributed by law or by contract, (e.g. joint property, designated beneficiaries on insurance policies or pension plans, pay on death designations on bank accounts) or pursuant to the New Mexico intestacy statute. This statute provides that community property will go to a surviving spouse; separate property will go 1/4 to a surviving spouse and the rest to children. If there is a spouse and no children, the property will pass to the spouse. After that it gets more complicated.
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If I die without a will, will the government be involved in the settling of my estate?

The government of New Mexico does not usually intervene in an estate. Your estate will probably be handled by a family member.
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When does estate tax begin for the federal government and New Mexico?

Congress has enacted and President Bush signed a bill known as the Economic Growth and Tax Relief Reconciliation Act of 2001.

In 2006, 2007 and 2008 the federal estate tax begins when the value of the estate is $2,000,000.00.

In 2009 the federal estate tax begins when the value of the estate is $3,500,000.00.

The estate tax is repealed in 2010.

Unless there is subsequent legislation this act has a sunset provision, which means that in 2011 this act shall not apply to to estates of decedents dying, gifts made or generation skipping transfers after December 31, 2010. This is done to comply with the Congressional Budget Act of 1974. This means that unless there is subsequent legislation the law will revert to what it is in 2001.

If the intricacies of the new act concern you, I advise you to consult an accountant or attorney to keep you abreast of the evolution of this law and how best to plan for it based on your circumstances.
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How long do I have to probate a New Mexico estate?

In most circumstances you have three years from date of death to initiate a probate.
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Can my personal representative be from another state?

Yes.
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When someone dies, is probate required?

Whether there has to be a probate depends on whether there is any property left in the name of the decedent alone which can be transferred to a living person only through the probate process and perhaps on other considerations.
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Can I nominate a guardian for my minor child or children if both parents die?
Yes, a guardian may be nominated by will or by a separate writing witnessed by two people.
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What are your typical fees and charges?
I offer a free short consultation at my office to give you an estimate of the price of preparing your documents. Gross receipts tax is added for all services. For wills and trusts, I request a retainer equal to one-half of the total amount estimated; the balance is due when the documents are completed or executed. In handling a probate, I request a retainer of $500 and payments may be required as we go along. I charge $125 plus gross receipts tax an hour for my time. I would be happy to discuss all of this with you.
If you would like more information, please contact me.
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Elizabeth Fisher
500 S. Main Street, 10th floor
P.O. Box 8052
Las Cruces, NM  88006
(575) 523-4321
Fax: (575) 526-6679

Contact me