Complex Will with Trust

LAST WILL AND TESTAMENT

and Testamentary Trust of [TESTATOR FULL LEGAL NAME]

(Drafted for use under New Mexico law—see N.M. Stat. Ann. §§ 45-1-101 et seq. (Uniform Probate Code) & 46A-1-101 et seq. (Uniform Trust Code))

Effective Date: ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­__[DATE]__
County & State of Execution: __[COUNTY, NEW MEXICO]__

TABLE OF CONTENTS

1. Definitions
2. Revocation of Prior Instruments
3. Family Identification

4. Appointment of Fiduciaries
   4.1 Personal Representative
   4.2 Trustee
   4.3 Guardian for Minor/Dependent Children

5. Specific Bequests

6. Residuary Estate & Creation of Testamentary Trust

7. Testamentary Trust Terms
   7.1 Name; Funding; Separate Share Accounting
   7.2 Beneficiaries & Distributive Standards
   7.3 Trustee Powers & Fiduciary Standards
   7.4 Administration; Accounting; Bond Waiver
   7.5 Trustee Compensation; Reimbursement; Liability Standards
   7.6 Spendthrift & Creditor Protection
   7.7 Termination & Final Distribution

8. Tangible Personal Property Memorandum

9. Digital Assets Directive
10. Simultaneous Death & Survivorship Provisions
11. Tax Allocation & Apportionment
12. Governing Law; Forum Selection; Injunctive Relief
13. Severability; Savings; No Contest Clause
14. Miscellaneous Provisions
15. Execution, Attestation & Self-Proving Affidavit

1. DEFINITIONS

For ease of reference, the following terms shall have the meanings set forth below. Capitalized terms used elsewhere but not defined shall carry their ordinary legal meanings under New Mexico law.

“Administrator” – The court-appointed personal representative if the nominated Personal Representative is unable to serve.
“Children” – All biological and legally adopted children of mine, presently living or hereafter born or adopted, including __[LIST NAMES/ DOBs]__.
“Code” – The Internal Revenue Code of 1986, as amended.
“Disability” – A condition that renders an individual unable to manage property or financial affairs as certified in writing by two licensed physicians.
“Personal Representative” – The executor or administrator of my estate appointed herein.
“Residue” – All property not effectively disposed of elsewhere in this Will, including lapsed gifts.
“Trust” – The testamentary trust created in Article 7, together with any separate share established thereunder.
“Trustee” – The fiduciary appointed to administer the Trust, including successors and co-trustees.

2. REVOCATION OF PRIOR INSTRUMENTS

I hereby revoke all prior wills, codicils, and testamentary dispositions made by me.

3. FAMILY IDENTIFICATION

I am __[MARITAL STATUS e.g., “married to” / “single”]__ [SPOUSE/ PARTNER NAME]. My children are identified in Article 1.

4. APPOINTMENT OF FIDUCIARIES

4.1 Personal Representative

I nominate [PRIMARY PERSONAL REPRESENTATIVE NAME], currently residing at __[ADDRESS]__, as Personal Representative (“PR”). If the PR is unable or unwilling to serve, I nominate [SUCCESSOR PR NAME].

The PR shall:
a. Serve without bond to the extent permitted by NMSA 1978, §§ 45-3-603 and 45-3-605; this direction does not prevent a court from requiring bond when the statute permits.
b. Exercise the estate powers provided by NMSA 1978, §§ 45-3-711 and 45-3-715, subject to fiduciary duties and this Will.
c. Settle and distribute my estate as expeditiously and efficiently as is consistent with the estate's best interests under NMSA 1978, § 45-3-703.

4.2 Trustee

I nominate [PRIMARY TRUSTEE NAME] as initial Trustee of the Trust created herein. If that Trustee cannot serve, [SUCCESSOR TRUSTEE NAME] shall serve. Co-trustees who cannot reach unanimity may act by majority decision under NMSA 1978, § 46A-7-703. A vacancy that must be filled shall be filled under § 46A-7-704.

4.3 Guardian

Under NMSA 1978, § 45-5-202, I appoint [PRIMARY GUARDIAN NAME] as guardian for any unmarried minor child of mine if the statutory conditions for the appointment to become effective are satisfied. I appoint [ALTERNATE GUARDIAN NAME] as successor.

5. SPECIFIC BEQUESTS

I give the following property subject to any encumbrance that is not otherwise discharged and subject to Article 11:

1. [Item/ Amount] to [Beneficiary Name & Relationship].
2. [Item/ Amount] to [Beneficiary Name & Relationship].

Under NMSA 1978, § 45-2-607, a specific devise passes subject to any mortgage interest existing at my death without a right of exoneration despite a general direction to pay debts.

6. RESIDUARY ESTATE & CREATION OF TESTAMENTARY TRUST

Under NMSA 1978, § 46A-4-401, I devise all of the rest, residue, and remainder of my estate (the “Residue”) to the Trustee, IN TRUST, to hold, manage, and distribute as set forth in Article 7.

7. TESTAMENTARY TRUST TERMS

7.1 Name; Funding; Separate Share Accounting

The trust shall be known as “The [TESTATOR SURNAME] Testamentary Trust” (“Trust”). The Trustee shall maintain separate shares per stirpes for my descendants and shall allocate receipts and disbursements under the Uniform Principal and Income Act, NMSA 1978, §§ 46-3A-101 et seq.

7.2 Beneficiaries & Distributive Standards

a. Discretionary Support. During a beneficiary’s minority or disability, the Trustee may distribute as much of that beneficiary’s share of income or principal as the Trustee, in the Trustee's discretion and subject to the mandatory good-faith standard in NMSA 1978, § 46A-1-105(B)(2), deems advisable for the beneficiary’s health, education, maintenance and support (“HEMS Standard”).
b. Mandatory Distribution Ages. Each beneficiary shall receive outright:
• One-third (1/3) upon attaining [AGE 25];
• One-half (½) of what then remains upon attaining [AGE 30]; and
• The balance upon attaining [AGE 35].
c. Uneconomic Trust. If a beneficiary's share is administered as a separate trust, then after notice to the qualified beneficiaries the Trustee may terminate that trust when its total value is less than fifty thousand dollars ($50,000) and insufficient to justify the cost of administration, and shall distribute it consistently with the Trust's purposes, as provided by NMSA 1978, § 46A-4-414.

7.3 Trustee Powers & Fiduciary Standards

Subject to fiduciary duties, the Trustee may exercise the general and specific powers in NMSA 1978, §§ 46A-8-815 and 46A-8-816. The Trustee shall administer the Trust in good faith and solely in the beneficiaries' interests under §§ 46A-8-801 and 46A-8-802, exercise reasonable care, skill, and caution under § 46A-8-804, invest under the Uniform Prudent Investor Act, §§ 45-7-601 to 45-7-612, and delegate only as permitted by § 46A-8-807.

7.4 Administration; Accounting; Bond Waiver

a. Reports. The Trustee shall provide the notices, information, and reports required by NMSA 1978, § 46A-8-813, including an annual report to distributees and permissible distributees and to other beneficiaries who request it.
b. Bond. A Trustee shall give bond only if a court finds it necessary to protect the beneficiaries or the Trust requires it and the court does not dispense with it, as provided by NMSA 1978, § 46A-7-702.
c. Governing Law and Administration. New Mexico law is designated under NMSA 1978, § 46A-1-107. New Mexico is designated as the principal place of administration only while the connection required by § 46A-1-108 exists.

7.5 Trustee Compensation; Reimbursement; Liability Standards

a. Compensation. If this Will does not specify compensation, the Trustee is entitled to compensation reasonable under the circumstances under NMSA 1978, § 46A-7-708.
b. Reimbursement. The Trustee is entitled to reimbursement from Trust property for expenses properly incurred in administration, and as necessary to prevent unjust enrichment for other expenses, under NMSA 1978, § 46A-7-709.
c. Exculpation. No term relieves a Trustee from liability for a breach committed in bad faith or with reckless indifference to the Trust's purposes or the beneficiaries' interests, or from any other liability that cannot be excused under NMSA 1978, § 46A-10-1008.
d. Personal Liability. Contract, tort, and property-related claims are governed by NMSA 1978, § 46A-10-1010. This Will creates no blanket cap limited to Trust assets and does not protect a Trustee who is personally at fault.

7.6 Spendthrift & Creditor Protection

Each beneficiary's interest is held subject to a spendthrift trust restraining both voluntary and involuntary transfer before receipt to the extent provided by NMSA 1978, § 46A-5-502 and the other creditor-rights provisions of Chapter 46A, Article 5.

7.7 Termination & Final Distribution

Upon the final distribution under Section 7.2(b) or (c), the beneficiary’s share shall terminate and the Trustee shall transfer all remaining assets to the beneficiary outright. If a beneficiary dies before complete distribution, the undistributed share shall pass per stirpes to that beneficiary’s descendants or, if none, to my then-living descendants per stirpes. If no such descendants survive, the share shall pass to my heirs-at-law determined under the New Mexico intestacy statutes then in effect.

8. TANGIBLE PERSONAL PROPERTY MEMORANDUM

I may leave a separate signed writing disposing of tangible personal property other than money. The writing shall govern to the extent it identifies the items and devisees with reasonable certainty and otherwise satisfies NMSA 1978, § 45-2-513.

9. DIGITAL ASSETS DIRECTIVE

Under NMSA 1978, § 46-13-4(B), I expressly consent to disclosure to my Personal Representative and Trustee of the content of my electronic communications and my other digital assets. I authorize those fiduciaries to access, manage, archive, transfer, delete, or terminate accounts and digital assets to the extent permitted by §§ 46-13-1 to 46-13-18 and § 45-3-711(B), subject to any controlling online-tool direction, applicable law, terms of service, and fiduciary duties.

10. SIMULTANEOUS DEATH & SURVIVORSHIP

Any beneficiary or fiduciary who does not survive me by at least 120 hours shall be deemed to have predeceased me for all purposes of this instrument, in accordance with N.M. Stat. Ann. § 45-2-702.

11. TAX ALLOCATION & APPORTIONMENT

The source and apportionment of estate, inheritance, generation-skipping transfer, and similar taxes shall be directed as follows after review by New Mexico tax counsel: [INSERT EXPRESS TAX-APPORTIONMENT DIRECTION]. If this field is not completed, applicable law controls, including the Uniform Estate Tax Apportionment Act, NMSA 1978, §§ 45-3-920 to 45-3-930. Any estate-tax direction should satisfy the express-and-unambiguous standard and limits in § 45-3-922.

12. GOVERNING LAW; FORUM SELECTION; INJUNCTIVE RELIEF

This Will and the Trust shall be construed under New Mexico law. Informal probate may proceed in the county probate court or district court, while formal probate and proceedings involving the Trust are within the district court's jurisdiction under NMSA 1978, §§ 45-1-302 and 46A-2-203. Probate venue is governed by § 45-3-201, and Trust venue by § 46A-2-204. Nothing in this Will waives a jury right available under § 45-1-306. A district court may grant appropriate relief for breach of trust under §§ 46A-10-1001 and 46A-10-1002.

13. SEVERABILITY; SAVINGS; NO-CONTEST CLAUSE

If any provision of this Will or the Trust is held invalid, the remaining provisions shall continue in full force. A beneficiary who contests this Will or institutes another proceeding relating to my estate without probable cause shall forfeit all interests and be treated as having predeceased me. Under NMSA 1978, §§ 45-2-517 and 45-3-905, this penalty clause is unenforceable when probable cause exists.

14. MISCELLANEOUS PROVISIONS

a. Headings are for convenience only and do not affect interpretation.
b. Gender and number include each other as context requires.
c. This Will is intended to be executed as a written instrument in the manner required by NMSA 1978, § 45-2-502.

15. EXECUTION, ATTESTATION & SELF-PROVING AFFIDAVIT

I, [TESTATOR FULL LEGAL NAME], being of sound mind and at least eighteen (18) years of age, sign my name to this instrument on the date and at the place first above written and declare that I sign willingly as my Last Will and Testament.

_______________________________________
[TESTATOR FULL LEGAL NAME], Testator

Witness Attestation

We, the undersigned witnesses, declare that the Testator, in our presence, signed and declared the foregoing instrument to be the Testator’s Last Will and Testament; that the Testator appears to be of sound mind and not acting under duress, fraud, or undue influence; and that we, in the Testator’s presence and at the Testator’s request, and in the presence of each other, sign our names as witnesses.

Self-Proving Affidavit

I, [TESTATOR NAME], the testator, swear or affirm under penalty of perjury on this ___ day of __________, 20___, that I request [WITNESS #1 NAME] and [WITNESS #2 NAME] to act as witnesses to my will; that I declare to them and the undersigned authority that this document is my will; that I sign this will in the presence of both witnesses; that they sign the will as witnesses in my presence and in the presence of each other; that the will was read by me (or read and explained to me) after being prepared and before I sign it; that it clearly and accurately expresses my wishes; that I sign it willingly (or willingly directed another to sign for me); that I make and sign the will as my free and voluntary act for the purposes expressed in the will; that I am eighteen years of age or older; that I am mentally capable of disposing of my estate by will; and that I am not acting under duress, menace, fraud, or undue influence of any person.

_______________________________________
[TESTATOR NAME], Testator

We, [WITNESS #1 NAME] and [WITNESS #2 NAME], the witnesses, swear or affirm under penalty of perjury on this ___ day of __________, 20___, to the undersigned authority that the testator declares that the attached document is the testator's will; that the testator signs it willingly (or willingly directs another to sign for the testator); that the testator signs it in the presence of both of us and requests both of us to sign as witnesses; that each of us, in the presence of the testator and in the presence of each other, signs this will as witness to the testator's signing; that so far as we can determine, the testator is eighteen years of age or older; that the testator is not acting under duress, menace, fraud, or undue influence of any person; and that the testator, in our opinion, is mentally capable of disposing of the testator's estate by will.

_______________________________________
[WITNESS #1 NAME], Witness

_______________________________________
[WITNESS #2 NAME], Witness

State of New Mexico
County of [____________]

Subscribed and sworn to, or affirmed under penalty of perjury, and acknowledged before me by [TESTATOR NAME], the testator, and subscribed and sworn to, or affirmed under penalty of perjury, before me by [WITNESS #1 NAME] and [WITNESS #2 NAME], witnesses, this ___ day of __________, 20___.

(Seal)

_______________________________________
Notary Public / Officer Authorized to Administer Oaths
My Commission Expires: ____________

Sources and References

• NMOneSource, current NMSA 1978 Chapter 45 — Uniform Probate Code
• NMOneSource, current NMSA 1978 Chapter 46 — Fiduciaries and Trusts
• NMOneSource, current NMSA 1978 Chapter 46A — Uniform Trust Code