Wills & Trusts
Last wills and testaments are governed by the New Mexico Chapter 45 Uniform Probate Code. A last will and testament provides directives for asset allocation upon your death.
If you die and there is no writing how to divide your assets, the court will divide your assets through the legal process called intestacy. If you want to determine how your assets are divided to your heirs (spouse, children, loved ones, pets, etc.), a will is one tool used. Not all assets can be left by will and an attorney can guide you through this construction. Defer to the FAQ for detailed questions.
Trust Under Will
A contingent trust under your will could be an option if you have minors as beneficiaries. The trust can be held for the beneficiaries until they mature or of an age to benefit from the assets.
Trusts
Trusts are governed by the New Mexico Statutes Chapter 46A Uniform Trust Code. This law enables various kinds including such as Revocable Trust, and Irrevocable Trust, Trust Under Will, and more.
Revocable Trust
A revocable trust is a document that provides directives regarding your assets when you die. However, unlike the will process, it avoids probate upon death. It also can avoid probate involvement for asset control, incapacitation issues, and more. It is considered a more cost effective and faster distribution and can address joint ownership models. See below for the revocable trust benefit.
Irrevocable Trust
An irrevocable trust is defined within the name, it is not changeable. You can select your beneficiaries and determine how your assets are divided. Some distinct features include:
- Medicaid planning
- Tax planning options
- Not able to change once established
Below is a snapshot of some trust vs. will distinctions. An attorney’s expertise for assets distribution construction is recommended as it can be complex and if constructed incorrectly, create potential conflict. There are more details not covered in this list and should be discussed with a professional. Defer to the FAQ for detailed questions. Below are some trusts to consider with will differentiation.
Trust & Will Overview |
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|
Revocable Trust (Living Trust) |
Irrevocable Trust | Trust Under Will | Will | |
| You can appoint self as Trustee | Yes | Confer with attorney | Confer with attorney | NA |
| Can be changed after you create | Yes (confer with attorney as revocable trust can become irrevocable upon settlors death) | No | No | Yes before death under legal elements |
| Private/Not Public Record | Yes | Yes | No | No |
| Protection Against Creditors | No | Yes | Confer with attorney | No |
| Medicaid & SSI Planning | No | Yes | Confer with attorney | No |
| Misappropriation of Asset Prevention | Confer with attorney | Yes | Depends on construction | Depends on construction |
| Avoids Probate |
Yes (created and funded before death, unless an interested party contests, contact attorney for other legal details) |
Yes (created and funded before death unless an interested party contests, contact attorney for other legal details) |
No | No |
| Incapacity Management | Yes | Yes but not generally, confer with attorney | Yes | NA, upon death |
| Manage assets for minors under 18 yrs old | Yes | Yes | Yes | No |
| Medical Power of Attorney | Yes | Contact attorney | NA | Living Will |
| Death Tax | Yes, confer with attorney | No, confer with attorney | Yes | Yes |
| Other Trust types |
Charitable Trust Pet Trust Land Trust
|
Asset Protection Trust Dynasty Trust Funeral Trust Testamentary Trust Special Needs Trust |
Testamentary Trust Family Trust
|
Living Will |
| Information above is an overview and not intended to provide specific asset guidance as there are additional laws that can impact your construction. Consult with an attorney to assess your portfolio for estate planning. | ||||
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