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New Mexico Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning, Family Law, Elder Law and Probate for New Mexico on
Q: My father is being financially exploited and is experiencing undue influence from my I brother and son how can I stop it

My 83 yr old father has my 55 yr old brother who has lived in my fathers home for 14 yrs without having any job and my 40 yr old son has lived there consistently for aprox 21 yrs never paying for anything either. My father has been diagnosed with dementia but has a fluctuating cognitive impairment.... View More

Nina Whitehurst
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answered on Dec 19, 2024

You can file your own report with adult protective services. But chances are that will not bring any relief. The only real solution is to hire an attorney to petition the court to appoint you as guardian and conservator for your father. If you have limited means you might try your local legal aid... View More

1 Answer | Asked in Estate Planning for New Mexico on
Q: How can a parent legally set up a trust for their adult child's inheritance from his grandmother and then control it?

I'm the 47 year old child in question, and my mother did this without my knowledge or consent before I even knew my grandmother had left anything to any of her grandchildren. And my grandmother that passed was my father's mother, not hers. My parents were divorced when I was a young... View More

James L. Arrasmith
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answered on Jun 2, 2024

For a parent to legally set up a trust for their adult child's inheritance without their knowledge or consent, certain conditions must be met. Generally, the person setting up the trust must have legal authority or be named as a trustee by the deceased in the will or estate plan. If your... View More

1 Answer | Asked in Divorce, Real Estate Law, Estate Planning, Family Law and Probate for New Mexico on
Q: Hello I was married for 20 years then divorced wife got everything now she's passed on do I get what I worked for back

Like the house the property and there was no will and we have two kids

T. Augustus Claus
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answered on Jan 10, 2024

In New Mexico, when a spouse passes away without a will, the state's intestate succession laws come into play to determine how the deceased's assets are distributed. Since you were divorced from your wife, and assuming she did not update her estate plan after the divorce, you might not... View More

1 Answer | Asked in Estate Planning, Family Law, Real Estate Law and Elder Law for New Mexico on
Q: Is a verbal wish of elderly parent (mother) valid with more then two witnesses.
T. Augustus Claus
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answered on Nov 27, 2023

In your case, it is unlikely that your mother's verbal wish to leave her house to you would be valid. This is because she was not in contemplation of imminent death when she made the wish and she was not a soldier or sailor. Additionally, it is possible that your siblings could challenge your... View More

1 Answer | Asked in Elder Law and Estate Planning for New Mexico on
Q: My elderly mother verbally told all her children , that who ever cared for her in her home keeps her house . Outside wil

My elderly mother offered her home to any of children in exchange for her care but not stated in her will. Not one of her children cared for her . I am the only one of her children that did all the care she had Alzheimer's and died of it in Sept 2023. Who is entitled to her home if not... View More

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answered on Nov 27, 2023

a verbal promise to leave real estate to someone in exchange for caregiving services can be enforceable under certain circumstances. This is known as a "contract to make a will." The elements of a valid contract to make a will are as follows:

The testator (the person making the... View More

2 Answers | Asked in Estate Planning and Probate for New Mexico on
Q: I was left money in a trust amendment that wasn't filed by the executor. What should I do?

I was left $100,000 in a sixth amendment to a trust by a deceased patient, but the executor, who has no relation to me, never filed the amendment and only filed the original will. I have a copy of the amendment. What steps can I take to ensure the amendment is recognized and my entitlement is... View More

Anthony M. Avery
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answered on Jun 24, 2025

If the will was probated then you will need a NM attorney to either contest the Will or construe the Will as to what assets pass through it. Your Trust Amendment will have to be enforceable. Who is the Trustee?

He has a duty to execute the Trust as amended. It will be difficult,... View More

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1 Answer | Asked in Estate Planning, Probate and Civil Litigation for New Mexico on
Q: Can a will be challenged if the creator had dementia diagnosed after the notarization when of sound mind?

I am the power of attorney for my late mother. My brother is challenging her will in court to become the executor. He seeks money from her estate, including her home, which is jointly in my name and her name. Her will stipulates that anyone contesting it receives only one dollar. My mother was... View More

James L. Arrasmith
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answered on Jun 12, 2025

Your position appears quite strong given that your mother's will was executed in 2017, three years before her dementia diagnosis in 2020. Courts evaluate mental capacity at the specific time the will was signed, not based on later diagnoses, and the fact that it was properly notarized creates... View More

1 Answer | Asked in Probate and Estate Planning for New Mexico on
Q: What does it mean when a trustee requests probate of the original will?

I am the beneficiary of my deceased mother's estate, and I need guidance on the significance of the trustee's request for her original last will and testament to be probated. Can you explain what this request means and its implications for me as a beneficiary?

James L. Arrasmith
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answered on May 15, 2025

I'm really sorry you're navigating this after losing your mother. It's natural to feel uncertain when legal terms like "probate" and "trustee" come into play, especially when you're trying to understand what it means for you as a beneficiary. You're... View More

1 Answer | Asked in Estate Planning and Probate for New Mexico on
Q: What document is needed to release my deceased brother's gun to me?

I am seeking advice on what document I need to submit to the police to release my deceased brother's gun to me. I am his next of kin and eligible to claim it. The investigation has been closed, as his passing was ruled a suicide and there are no ongoing legal matters. I previously contacted an... View More

James L. Arrasmith
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answered on May 15, 2025

I'm really sorry for your loss. Handling matters like this after a loved one’s passing can be emotionally heavy, especially when you’re left without clear guidance. Since the investigation is closed and there are no legal holds on the firearm, you are within your rights to ask for its... View More

1 Answer | Asked in Real Estate Law and Estate Planning for New Mexico on
Q: Can a certified copy of a Power Of Attorney be recorded in NM for real estate transfer?

I am planning to transfer ownership of vacant real estate using a Power of Attorney in the states of Arizona, Colorado, New Mexico, Oklahoma, and Texas. The Power of Attorney has previously been used in another state. Can a certified copy of the Power of Attorney be recorded for the transaction, or... View More

James L. Arrasmith
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answered on May 15, 2025

In New Mexico, a certified copy of a Power of Attorney can usually be recorded for real estate transactions, as long as it meets certain legal standards. The county clerk’s office where the property is located typically requires either the original Power of Attorney or a certified copy that... View More

1 Answer | Asked in Estate Planning, Family Law and Adoption for New Mexico on
Q: Are my children heirs of my husband in second marriage?

In my second marriage, my husband does not have a will, there are no legal documents addressing inheritance, and he has not adopted my children. Are my children considered heirs of my husband?

James L. Arrasmith
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answered on May 14, 2025

This is a very important question, and it’s wise that you’re thinking about it now before anything happens. In most states, if your husband passes away without a will (which is called dying intestate), his estate will be divided according to state intestacy laws. Typically, those laws recognize... View More

1 Answer | Asked in Social Security, Appeals / Appellate Law, Estate Planning and Public Benefits for New Mexico on
Q: Social Security benefits and life insurance policy conflict in NM

On January 22nd, I had a Social Security hearing where the judge ruled in my favor for disability, supplemental social security, and back pay since October 2022. I was later asked by a Social Security worker if I had any life insurance policies, and I provided the policy number for one my mother... View More

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answered on May 1, 2025

Your situation involves a critical interplay between SSI eligibility and life insurance policies. For Supplemental Security Income (SSI) eligibility, life insurance with cash surrender value owned by you is excluded from countable resources only if the total face value of all policies is $1,500 or... View More

1 Answer | Asked in Probate, Estate Planning and Domestic Violence for New Mexico on
Q: How can I contest my mother’s estate against her separated husband?

My mother recently passed away without a will. She was separated from her husband at the time due to a restraining order, and I know she appointed me as her power of attorney. Her husband is now trying to take control of her entire estate, including her vehicle. I'm the only heir contesting... View More

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answered on Apr 12, 2025

Since your mother passed away without a will, her estate will be distributed according to the laws of intestate succession in your state. As her only heir, you have a legal claim to her estate. The fact that her husband is separated from her and there is a restraining order in place may affect his... View More

1 Answer | Asked in Estate Planning, Civil Litigation and Gov & Administrative Law for New Mexico on
Q: How to address suspected financial mismanagement of my mother's assets by POA sister?

I need guidance on how to address potential financial mismanagement involving my mother's assets. My sister is the Power of Attorney for my mother, who has dementia, and I am her primary caregiver. For the past year, I've tried to communicate with my sister about missing funds, but she... View More

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answered on Apr 12, 2025

This sounds like an incredibly difficult and emotional situation, especially since you're caring for your mother day-to-day and trying to protect her well-being. In New Mexico, someone granted Power of Attorney (POA) has a legal duty to act in the best interest of the person they represent. If... View More

2 Answers | Asked in Estate Planning, Tax Law, Business Formation and Business Law for New Mexico on
Q: What is the best way to gift CDs for grandchildren in NM?

I am considering gifting CDs to my two grandchildren, aged 12 and 17, in New Mexico. Each CD would start at $15,000 from my Credit Union. Given New Mexico's $16,000 gift limit and the availability of free higher education in the state, I want to ensure the funds can be used for other expenses... View More

Anthony M. Avery
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answered on Apr 2, 2025

Hire a NM attorney to construct those gifts. They involve many different laws and may require a trust or a gift to minor act, etc. The expense required may not justify this.

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2 Answers | Asked in Civil Rights, Domestic Violence, Elder Law and Estate Planning for New Mexico on
Q: How can my son terminate the negligent power of attorney for my mother with dementia?

My mother, who has dementia, is currently under the care of a nursing home, and her power of attorney has been negligent, preventing her son, who is her favorite, from having any contact with her. The nursing home has made false claims that the son is discourteous and disruptive, but we have a... View More

Nina Whitehurst
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answered on Mar 16, 2025

If your mother lacks the capacity to terminate the POA herself, your only option is to go to court to get a guardian appointed for your mother.

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1 Answer | Asked in Probate and Estate Planning for New Mexico on
Q: How can I be appointed executor of my mother's estate and stop misuse of her funds?

I am seeking to become the administrator of my deceased mother's estate. My sister passed away many years ago, and my brother is homeless and unreachable. I need guidance on how to be appointed as executor quickly, as my cousin, who holds power of attorney, continues to spend funds from my... View More

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answered on Mar 4, 2025

Hire a NM attorney to file for a conservatorship/guardianship with you as the fiduciary.

1 Answer | Asked in Estate Planning and Probate for New Mexico on
Q: In New Mexico if my brother refuses to file a will does the probate court proceed as if there is not one?

My father just passed away and I know there was at least 1 will possibly 2 and my brother says he is the named executor and he doesn't have to file it in the courts nor does his estate have to go through probate. He also is refusing to let me see the will telling me my fathers home is going to... View More

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answered on Feb 13, 2025

Hire a NM attorney to file for an intestate administration. The administrator will have to make a bond and then start marshalling up the Estate's assets.

1 Answer | Asked in Estate Planning and Probate for New Mexico on
Q: In New Mexico if my father has a will naming my brother as executor is his estate required by law to go through probate?

My father just passed away and he named my brother as his legal representative in his will. My brother believes because he is listed as my father legal representative that my fathers estate does not have to go through probate court. Is that correct? If not what exactly is the law regarding probate... View More

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answered on Feb 5, 2025

Where there’s a will there’s probate. The will only nominates an executor. It takes a court order to appoint an executor. Most of the time the court goes along with the nomination in the will, but not always.

1 Answer | Asked in Estate Planning, Family Law, Real Estate Law and Probate for New Mexico on
Q: My Dad died interstate. But had a written will with two witnesses. Is there a way to transfer the home to the heirs

Can the home valued at 56000 be transfer to heir with our probate?

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answered on Feb 1, 2025

Deceased heirs own it at death unless the Will is probated, which may be advisable. Hire a NM attorney to search the title, determine heirship, then record an affidavit and/or deeds to get it to the heir who wants it.

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