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]

[// GUIDANCE: This comprehensive template purposefully blends will and trust provisions. Delete bracketed guidance before final execution. All bracketed ALL-CAPS items are user-supplied data fields.]

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; Indemnification; Liability Cap
   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.
“Qualified Trustee” – Any individual or corporate fiduciary eligible under N.M. Stat. Ann. § 46A-7-701 and successor sections.
“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. No other person is entitled to be treated as my spouse or child for purposes of this Will.

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, accounting or surety.
b. Have all powers granted under N.M. Stat. Ann. §§ 45-3-701 et seq. and this instrument.
c. Settle and distribute my estate with reasonable dispatch.

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 may act by majority vote; deadlock may be resolved by binding decision of the eldest co-trustee.

4.3 Guardian

If at my death any child of mine is a minor, I nominate [PRIMARY GUARDIAN NAME] as guardian of the person and estate of such child, and [ALTERNATE GUARDIAN NAME] as successor.

5. SPECIFIC BEQUESTS

I give the following property free and clear of all debts and taxes:

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

Any encumbrance on specifically devised real or personal property shall pass with the property and shall not be exonerated.

6. RESIDUARY ESTATE & CREATION OF TESTAMENTARY TRUST

I devise, bequeath and appoint 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.

[// GUIDANCE: If using marital deduction/credit-shelter formulas, insert optional marital/ family trusts before residuary pour-over.]

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, allocating receipts and disbursements in accordance with the New Mexico Principal and Income Act.

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 either income or principal as the Trustee, in its sole and absolute discretion, deems necessary or 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. Early Termination. If the value of a beneficiary’s share falls below $[THRESHOLD], the Trustee may distribute the remaining corpus outright regardless of age.

7.3 Trustee Powers & Fiduciary Standards

The Trustee shall exercise all powers permissible under N.M. Stat. Ann. § 46A-8-801 et seq., including but not limited to: invest, reinvest, retain, sell, lease, borrow, encumber, compromise, delegate, and execute documents. The Trustee shall act as a prudent person would in managing similar property and may employ professionals at the Trust’s expense.

7.4 Administration; Accounting; Bond Waiver

a. Accounts. The Trustee shall furnish annual accounts to each current income and presumptive remainder beneficiary.
b. Bond. No bond or other security shall be required of any Trustee unless ordered by a court of competent jurisdiction for cause.
c. Situs & Governing Law. The Trust’s situs shall be New Mexico, and the Trust shall be governed by New Mexico law regardless of the domicile of any beneficiary or Trustee.

7.5 Trustee Compensation; Indemnification; Liability Cap

a. Compensation. Individual Trustees shall be compensated at a reasonable hourly rate; corporate Trustees at their standard published fee schedule.
b. Indemnification. The Trustee shall be indemnified from the Trust assets against any claim, loss, or liability incurred in good-faith performance of fiduciary duties, except for acts of gross negligence, willful misconduct, or bad faith.
c. Liability Cap. Any liability of the Trustee to the beneficiaries or third parties shall be limited to the value of the Trust assets; beneficiaries expressly waive recourse against the Trustee’s personal assets.

7.6 Spendthrift & Creditor Protection

No interest of any beneficiary shall be assignable or subject to the claims of creditors prior to actual receipt, consistent with N.M. Stat. Ann. § 46A-5-501 et seq.

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 fails to survive final distribution by thirty (30) days, the undistributed share shall pass per stirpes to the 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 memorandum describing the disposition of specific tangible personal property. Such memorandum, if found by my Personal Representative, shall be binding and incorporated herein by reference pursuant to N.M. Stat. Ann. § 45-2-513.

9. DIGITAL ASSETS DIRECTIVE

I authorize my Personal Representative and Trustee to access, manage, and dispose of my digital assets and electronic communications to the fullest extent permitted by the Revised Uniform Fiduciary Access to Digital Assets Act (N.M. Stat. Ann. §§ 46-6-1 et seq.).

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

All estate, inheritance, generation-skipping transfer and similar taxes (“Death Taxes”) attributable to property passing under this Will or otherwise shall be paid from the Residuary Estate without apportionment, except as otherwise directed in any trust created herein or in any non-probate beneficiary designation.

12. GOVERNING LAW; FORUM SELECTION; INJUNCTIVE RELIEF

This Will and the Trust shall be construed and enforced in accordance with the laws of the State of New Mexico. Exclusive venue for all probate and trust proceedings shall lie in the [COUNTY NAME] County Probate Court (the “Designated Court”). No party shall have a right to trial by jury, and arbitration shall not apply. The Designated Court shall retain continuing jurisdiction to issue temporary, preliminary, and permanent injunctive relief to enforce the Trust terms.

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. Any beneficiary who contests this Will or Trust (except for acting in good-faith to construe or enforce its terms) shall forfeit all interests herein and be treated as having predeceased me.

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. Signatures delivered by electronic means shall be deemed originals where permitted by law.

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

State of New Mexico )
: ss. )
County of ____ )

Subscribed, sworn to, and acknowledged before me by [TESTATOR NAME], and subscribed and sworn to before me by the witnesses, this ___ day of _, 20.

_________
Notary Public
My Commission Expires: ______

[// GUIDANCE:
1. Insert any supplemental schedules (e.g., specific bequest schedules, trustee fee schedules) after the execution block.
2. Practitioners commonly draft a separate “Letter to Fiduciaries” summarizing duties and practical steps.
3. Review elective share implications if the Testator is married—New Mexico’s augmented-estate rules may override dispositive provisions.
4. Confirm witness and notary requirements if executing outside New Mexico; consider execution formalities under N.M. Stat. Ann. § 45-2-502.
5. File the original Will in a secure location and inform the Personal Representative of its whereabouts.
]