Uniform Statutory Will Act

NMSA 1978 ch. 45, art. 2A

in effect

NMSA 1978, § 45-2A-1 Short title

45-2A-1. Short title This act [45-2A-1 to 45-2A-17 NMSA 1978] may be cited as the "Uniform Statutory Will Act". Laws 1991, ch. 173, § 1.

NMSA 1978, § 45-2A-2 Definitions

45-2A-2. Definitions As used in the Uniform Statutory Will Act: A. "child" means, except as modified by this subsection, a child of a natural parent whose relationship is involved; an adopted individual is the child of the adopting parents and not of the natural parents, but an individual adopted by the spouse of a natural parent is also the child of either natural parent; an individual born out of wedlock is not the child of the father unless the individual is openly and notoriously so treated by the father; the term does not include an individual who is a stepchild, a foster child, a grandchild or a more remote descendant; B. "issue" of an individual means all lineal descendants of all generations, with the status of a child at each generation being determined by the definition of child in Subsection A of this section; C. "personal representative" includes executor, administrator, successor personal representative, special administrator and a person who performs substantially the same functions relating to the estate of a decedent under the law governing their status; D. "property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property; E. "representation" means the estate is divided into as many equal shares as there are surviving issue in the nearest degree of kinship and deceased individuals in the same degree who left issue surviving the decedent, each surviving issue in the nearest degree receiving one share and the share of each deceased individual in the same degree being divided among issue of that individual in the same manner; F. "statutory-will estate" means the entire testamentary estate, except as otherwise provided in the will; G. "surviving spouse" means the individual to whom the testator was married at the time of death except a spouse from whom the testator was then separated under a decree of separation, whether or not final, or written separation agreement signed by both parties; an individual separated from the testator whose marriage to the testator continues in effect under the law of this state solely because a judgment of divorce or annulment of the marriage is not recognized as valid in this state is not the testator's surviving spouse; an individual whose marriage to the testator at the time of death is not recognized in this state solely because a judgment of divorce or annulment of a previous marriage of either or both of them is not recognized as valid in this state is the testator's surviving spouse; H. "testamentary estate" includes every interest in property subject to disposition or appointed by a will of the decedent; I. "testator's residence" means one or more properties normally used at the time of the testator's death by the testator or the surviving spouse as a residence for any part of the year; if the property used as a residence is a unit in a cooperative or other entity, it includes all rights and interests relating to that unit; if the property is used in part for a commercial, agricultural or other business purpose, the testator's residence is an area not exceeding three acres, which includes the structure used in whole or in part as a residence and structures normally used by the testator in connection with the dwelling and excludes structures and areas outside the dwelling used primarily for a commercial, agricultural or other business purpose; and J. "trustee" includes an original, additional or successor trustee, whether or not appointed or confirmed by the court. Laws 1991, ch. 173, § 2.

NMSA 1978, § 45-2A-3 Making statutory will

45-2A-3. Making statutory will An individual having capacity to make a will under the laws of this state may make a statutory will under the Uniform Statutory Will Act. The will must be executed in a manner recognized as valid under the laws of this state. Laws 1991, ch. 173, § 3.

NMSA 1978, § 45-2A-4 Incorporation by reference

45-2A-4. Incorporation by reference A. A will may incorporate by reference the provisions of the Uniform Statutory Will Act in whole or in part and with any modifications and additions the will provides. To the extent an express provision of a will conflicts with that act, the will governs. B. A provision that all or part of the testator's testamentary estate is to be disposed of in accordance with the Uniform Statutory Will Act incorporates by reference provisions of that act in effect on the date the will is executed. C. An incorporation by reference of provisions of the Uniform Statutory Will Act may be in the following or a substantially similar form: "Except as otherwise provided in this will, I direct that my testamentary estate be disposed of in accordance with the New Mexico's Uniform Statutory Will Act." Laws 1991, ch. 173, § 4.

NMSA 1978, § 45-2A-5 Shares under statutory will

45-2A-5. Shares under statutory will The statutory-will estate passes as provided in Sections 6 through 10 [45-2A-6 to 45-2A-10 NMSA 1978] of the Uniform Statutory Will Act. Laws 1991, ch. 173, § 5.

NMSA 1978, § 45-2A-6 Share of spouse

45-2A-6. Share of spouse A. The share of the surviving spouse is: (1) if there is no surviving issue, the entire statutory-will estate; or (2) if there is a surviving issue: (a) subject to any lien or encumbrance, the testator's residence and tangible personal property, except personal property held primarily for investment or for a commercial, agricultural or other business purpose; (b) the greater of one hundred fifty thousand dollars ($150,000) or one-half of the balance of the statutory-will estate; and (c) subject to Subsection B of this section, an interest in the remaining portion of the statutory-will estate, including any property that would pass under Subparagraph (a) of this paragraph but disclaimed by the surviving spouse, in a trust upon the terms set forth in Section 7 [45-2A-7 NMSA 1978] of the Uniform Statutory Will Act. B. If the personal representative, other than the surviving spouse, determines that the trust under Section 7 of the Uniform Statutory Will Act would be uneconomical, the entire statutory-will estate passes to the surviving spouse. Laws 1991, ch. 173, § 6.

NMSA 1978, § 45-2A-7 Trust for spouse and issue

45-2A-7. Trust for spouse and issue A. Property held in trust under Subparagraph (c) of Paragraph (2) of Subsection A of Section 6 [45-2A-6 NMSA 1978] is held upon the terms of Subsections B through D of this section. B. During the life of the surviving spouse, the entire net income must be paid to or for the benefit of the surviving spouse in quarterly or more frequent installments; net income accrued or undistributed on the death of the surviving spouse must be paid to the estate of the spouse; if unproductive property is held in the trust, the surviving spouse at any time by written instrument delivered to the trustee may compel conversion of the unproductive property to productive property. C. During the life of the surviving spouse, the trustee at any time may pay to or for the benefit of the surviving spouse and issue of the testator amounts of the principal the trustee deems advisable, giving reasonable consideration to other resources available to the distributee, for the individual's needs for health, education, support or maintenance; for the purpose of making those discretionary payments, the principal must be administered as two separate shares, which at the inception of the trust must be equal; one share is the surviving spouse's share of the principal; during the life of the surviving spouse, payments may not be made from the surviving spouse's share to anyone other than the surviving spouse; primary consideration must be given to the needs of the surviving spouse and the children of the testator who are under the age of twenty-three years or under disability. The trustee may rely in good faith on a written statement furnished by a beneficiary. The discretion to pay principal to or for the benefit of any individual includes the discretion after that individual's death to pay expenses incurred before the individual's death and to pay funeral and burial expenses. If the trustee, other than the surviving spouse, determines that continuation of the trust is uneconomical, the trustee may terminate the trust by distribution of principal to the surviving spouse. Principal that in the exercise of the trustee's discretion is paid to or for the benefit of any issue may be charged against any share of income or principal thereafter existing for that issue or for any ancestor or descendant of that issue if the trustee upon equitable considerations so determines. If the surviving spouse or any issue is serving as trustee, the trustee's discretion pursuant to this subsection is not exercisable in favor of that trustee except as necessary for the trustee's needs for health, education, support or maintenance, nor is the trustee's discretion exercisable in favor of the trustee's estate, the trustee's creditors or creditors of the trustee's estate. D. On the death of the surviving spouse, the principal, unless retained in trust under Section 9 or 10 [45-2A-9, 45-2A-10 NMSA 1978] of the Uniform Statutory Will Act, must be paid, subject to any charges made by the trustee under Subsection C of this section, to the children of the testator in equal shares if all of the children are then living, otherwise to the then living issue of the testator by representation or, if no issue of the testator is then living, to the individuals who would be entitled to receive the estate as if the property were located in this state and the testator had then died intestate domiciled in this state in proportions determined under the law then existing. Laws 1991, ch. 173, § 7.

NMSA 1978, § 45-2A-8 Shares of heirs when no surviving spouse

45-2A-8. Shares of heirs when no surviving spouse A. If there is no surviving spouse, the statutory-will estate passes, subject to Sections 9 and 10 [45-2A-9, 45-2A-10 NMSA 1978], as follows: (1) if there is surviving issue, in equal shares to the children of the testator if all of them survive, otherwise to the surviving issue of the testator by representation; or (2) if there is no surviving issue, to the individuals entitled to receive the estate as if the property were located in this state and the testator had died intestate domiciled in this state in the proportions so determined. B. Unless the personal representative determines that a trust would be uneconomical, property to which Section 9 or 10 applies must be distributed to the trustee. If the personal representative determines that a trust would be uneconomical, the property passes under Subsection A of this section free of trust. The discretion provided in this subsection to the personal representative is not exercisable by any of the testator's issue serving as personal representative. Laws 1991, ch. 173, § 8.

NMSA 1978, § 45-2A-9 Trust if child under specified age

45-2A-9. Trust if child under specified age A. If property is distributable under Section 8 [45-2A-8 NMSA 1978] or Subsection D of Section 7 [45-2A-7 NMSA 1978] of the Uniform Statutory Will Act to a child of the testator who is under the age specified in the will or, if the will does not specify an age, under the age of twenty-three years, all shares distributable to issue of the testator must be held in a trust under this section. In exercising powers under Subsections B and C of this section, primary consideration must be given to the needs of children of the testator who are under the age of twenty-three years or under disability. B. Until no living child of the testator is under the age determined under Subsection A of this section, the trustee shall pay the income and principal of the trust to or for the benefit or account of one or more of the issue of the testator in amounts the trustee deems advisable for their needs for health, education, support or maintenance. Income not so paid may be added to principal. C. The trustee at any time in its discretion may distribute to a beneficiary the share, in whole or in part, of the trust to which the distributee would be entitled if the trust then terminated. If the whole of a share has been distributed under this subsection, the trustee thereafter must not make any further distribution of income or principal to that distributee or issue of that distributee. D. The trust terminates when no living child of the testator is under the age determined under Subsection A of this section or the trustee determines that continuation of the trust is uneconomical. E. Subject to section 10 [45-2A-10 NMSA 1978] of the Uniform Statutory Will Act and Subsection C of this section, the property in the trust must be distributed upon termination to the issue of the testator in proportion to the shares determined at the death of the surviving spouse under Subsection D of Section 7 of the Uniform Statutory Will Act, or at the death of the testator under Section 8 of that act if there is no surviving spouse. In determining the amount to be distributed to any distributee, the trustee shall charge the share of that distributee with any partial distribution made under Subsection C of this section and may charge, in its discretion, the share of that distributee with distributions under Subsection B of this section to or for the benefit or account of the distributee, or issue or ancestor of the distributee. If any issue whose share is held in trust under this section dies before the complete distribution of the share, the property to which the issue would have been entitled if living must be distributed to the assignees, or, if none, to the estate of the deceased issue. F. If an issue is serving as trustee, the discretion of the trustee under this section is not exercisable, except as necessary for that individual's needs for health, education, support or maintenance, in favor of that individual, that individual's estate, that individual's creditors or the creditors of that individual's estate. Laws 1991, ch. 173, § 9.

NMSA 1978, § 45-2A-10 Effect of disability at distribution

45-2A-10. Effect of disability at distribution A. If property becomes distributable by a personal representative or trustee to an individual under the age specified in the will or, if the will does not specify an age, under the age of twenty-three years, or to an individual who the personal representative or trustee determines cannot effectively manage or apply the property by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause: (1) the personal representative or trustee, as to principal or income, may distribute part or all of the property to the distributee directly, by deposit or investment in the distributee's name or for the distributee's account, or to a guardian or conservator for the distributee; (2) the personal representative may distribute to the trustee in trust under Paragraph (3); or (3) the trustee may retain all or any of the property in trust for the distributee and thereafter at any time the trustee may distribute or apply part or all of the principal or income to or for the benefit or account of the distributee. B. Unless terminated earlier, a trust under Paragraph (3) of Subsection A of this section terminates upon the attainment of the required age, removal of the disability or death of the distributee. Upon termination, the trustee shall distribute the remaining trust property to the distributee or personal representative of the distributee's estate. C. This section does not apply to distributions to a surviving spouse of the testator. Laws 1991, ch. 173, § 10.

NMSA 1978, § 45-2A-11 Powers of appointment

45-2A-11. Powers of appointment A. A will incorporating by reference the terms of the Uniform Statutory Will Act does not exercise a power of appointment unless: (1) the will complies with any conditions imposed on the exercise of the power; (2) the appointment is within the scope of the power; and (3) the will expressly refers to the power or expresses an intent to exercise any power of appointment held by the testator. B. If a power of appointment is exercised as provided in Subsection A of this section, the appointed property passes as part of the statutory-will estate unless the will provides otherwise. Laws 1991, ch. 173, § 11.

NMSA 1978, § 45-2A-12 Survival

45-2A-12. Survival An individual who does not survive the testator by thirty days or more is treated as if the individual predeceased the testator. Laws 1991, ch. 173, § 12.

NMSA 1978, § 45-2A-13 Appointment of personal representative and trustee

45-2A-13. Appointment of personal representative and trustee A. The person named in the will as personal representative or trustee is entitled to serve, if qualified, as personal representative or trustee. B. If a qualified person is not named in the will as personal representative, or the named person is incapacitated, unwilling to serve or dead, and a qualified alternate is not named in the will, priority for appointment as personal representative is determined by the law of the state of decedent's domicile at death. C. If a qualified person is not named in the will as trustee, or the named person is incapacitated, unwilling to serve or dead, and a qualified alternate is not named in the will, the personal representative may appoint, without court approval, a qualified person, including a person serving as personal representative, to serve as trustee. D. If a personal representative or trustee resigns, is removed, becomes incapacitated or dies, the surviving spouse, or if there is no surviving spouse or the surviving spouse is unable or unwilling to act, a majority of the adult children of the testator may appoint a qualified successor personal representative or trustee. E. In all other cases, personal representatives and trustees must be appointed by the court. Laws 1991, ch. 173, § 13.

NMSA 1978, § 45-2A-14 Powers

45-2A-14. Powers A. Subject to Subsection C of this section and except as expressly provided by will, a trustee, in addition to any other powers conferred by law, without prior approval of any court may: (1) retain property in the form in which it is received, including assets in which the trustee is personally interested; (2) make ordinary or extraordinary repairs, store, insure or otherwise care for any tangible personal property and pay shipping or other expense relating to the property as the trustee considers advisable; (3) abandon property the trustee determines to be worthless; (4) invest principal and income in any property the trustee determines and, without limiting the generality of the foregoing, invest in shares of an investment company or in shares or undivided portions of any common trust fund established by the trustee; (5) sell, exchange or otherwise dispose of property at public or private sale on terms the trustee determines, no purchaser being bound to see to the application of any proceeds; (6) lease property on terms the trustee determines even if the term extends beyond the time the property becomes distributable; (7) allocate items of income or expense to income or principal, as provided by law; (8) keep registered securities in the name of a nominee; (9) pay, compromise or contest claims or controversies, including claims for estate or inheritance taxes, in any manner the trustee determines; (10) participate in any manner the trustee determines in any reorganization, merger or consolidation of any entity whose securities constitute part of the property held; (11) deposit securities with a voting trustee or committee of security holders even if under the terms of deposit the securities may remain deposited beyond the time they become distributable; (12) vote any security in person or by special, limited or general proxy, with or without power of substitution, and otherwise exercise all the rights that may be exercised by any security holder in an individual capacity; (13) borrow any amount the trustee considers advisable to obtain cash for any purpose of the trust, and in connection therewith, mortgage or otherwise encumber any property on any conditions the trustee determines even if the term of the loan may extend beyond the term of the trust; (14) allot in or towards satisfaction of any payment, distribution or division, in any manner the trustee determines, any property held at the then current fair market value; (15) hold trusts and shares undivided or at any time hold them or any of them set apart one from another; (16) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement; (17) sell or exercise stock subscription or conversion rights; (18) employ persons, including attorneys, auditors, investment advisers or agents, even if associated with the trustee, to advise or assist the trustee in the performance of duties, act without independent investigation upon their recommendations and, instead of acting personally, employ agents to perform any act of administration, whether or not discretionary; (19) continue any unincorporated business or venture in which the decedent was engaged at the time of death; (20) incorporate any business or venture in which the decedent was engaged at the time of death; (21) distribute property distributable to the estate of an individual directly to the devisees or heirs of the individual; and (22) perform any other act necessary or appropriate to administer the trust. B. Except as expressly provided in the will, the personal representative, in the administration of the estate, has all of the powers of a personal representative under the [Uniform] Probate Code and all of the powers of a trustee conferred under Subsection A of this section. In addition, the personal representative has the power to satisfy written charitable pledges of the decedent, irrespective of whether the pledges constitute binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges satisfied under the circumstances. C. Except as expressly provided in the will, the personal representative or trustee shall observe the standards in dealing with the estate which would be observed by a prudent person dealing with the property of another. If the personal representative or trustee has special skills or is named personal representative or trustee on the basis or representation of special skills or expertise, the person is under a duty to use those skills. Except to the extent qualified property is not available, only property that qualifies for the estate tax marital deduction under the Internal Revenue Code, as amended, may be allocated to the surviving spouse under Section 6 [45-2A-6 NMSA 1978] of the Uniform Statutory Will Act or to the surviving spouse's share of principal in a trust established under Section 7 [45-2A-7 NMSA 1978] of that act. Laws 1991, ch. 173, § 14.

NMSA 1978, § 45-2A-15 Bond or surety

45-2A-15. Bond or surety A personal representative or trustee under the Uniform Statutory Will Act shall serve without giving bond or surety unless the testator by will, or the court upon the application of any person interested in the estate, provides otherwise. Laws 1991, ch. 173, § 15.

NMSA 1978, § 45-2A-16 Uniformity of application and construction

45-2A-16. Uniformity of application and construction The Uniform Statutory Will Act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of that act among states enacting it. Laws 1991, ch. 173, § 16.

NMSA 1978, § 45-2A-17 Form of statutory will

45-2A-17. Form of statutory will I, ________, of the City of ________, County of ________, and State of ________, declare this to be my Last Will and hereby revoke all of my prior wills and codicils. 1. I direct that my testamentary estate be disposed of in accordance with the Uniform Statutory Will Act, as in effect on the date of execution of this will. 2. I appoint ________ as personal representative of my estate under this will. If a trust becomes applicable under the provision of the Act, I appoint ________ as trustee hereunder. If either of them does not serve, or at any time ceases to serve, in either capacity, I appoint ________ to serve in the vacant capacity or capacities. I appoint ________ as guardian and conservator of my minor children. I, ________, the testator, sign my name to this instrument this ______________ day of ________, 19 ____, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my Last Will and that I (sign it willingly) (willingly direct another to sign for me) (cross out the one of these two alternatives that is inapplicable), that I execute one of these two alternatives that is inapplicable [sic], that I execute it as my free and voluntary act for the purpose therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence. __________________ Testator We, ________ and ________ the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as (his) (her) Last Will and that (he) (she) (signs it willingly) (willingly directs another to sign) (her) (him) (cross out the inapplicable word or phrase in each of these instances), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence. __________________ Witness __________________ Witness State of __________________ County of __________________ Subscribed, sworn to and acknowledged before me by ________, the testator, and subscribed and sworn to before me by ________ and ________, witnesses, this ________ day of ________, 19 ____. (Seal) (Signed) __________________________________________________ ___________________________________________________________ (official capacity of officer) Laws 1991, ch. 173, § 17.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18546/index.doFetched: 10/20/2026