A Will is a written document signed in a manner prescribed by law which disposes of property upon death. A Will also:
- Nominates who should be responsible for wrapping up your affairs
- Nominates guardians for your minor children
- Can determine when and how your heirs will receive the property you leave them
- Can determine how taxes, if any are owed, will be paid and can employ tax planning strategies
A Will becomes effective only after the death of the Will-Maker. It must be probated before it becomes effective, which requires filing in Probate Court. There must be sufficient proof that it is the Will of the decedent. The Court oversees the probate process and administration of the estate. It is a public process and does not provide for the incapacity of the Will-Maker, only plans that are intended to be in place after their death.
Trusts are private agreements between a grantor and a trustee, for the benefit of the beneficiary. In New Mexico, the grantor, trustee, and beneficiary can all be the same person. A Trust can:
- Be established for yourself
- Be established for someone else, and can protect assets from creditors
- Nominates successor trustees in the event that a trustee becomes incapacitated
- You have someone who can step in and manage the assets of the trust without Court intervention
Special Needs Trusts can protect eligibility for government benefits. It provides for a higher quality of life for the beneficiary. It provides the framework for care and management of assets. It allows parents to express their desires. A trust protects assets from creditors and predators, and can extend the life of the assets.
A Special Needs Trust can avoid many of the costly mistakes people make when planning for their child with special needs, such as: disinheriting the child, relying on your other children to provide for the child with special needs, failing to provide privacy for the child with special needs, and choosing the wrong professionals. Some people may think disinheriting the child with special needs will protect their public benefits. However, public benefits provide minimal levels of help, your special needs child depends on your more than your other children, and it is short-sighted planning to employ this route. While reliance on siblings may be a workable temporary solution, it may have serious long-term drawbacks. Siblings may lack financial and emotional resources, and if the sibling gets divorced or has other creditor problems the assets may end up going to a creditor or ex-spouse. And what happens if the sibling dies or becomes incapacitated? The probate process for a Will is public, predators may learn of your child’s inheritance and seek to separate them from their assets. An experienced attorney can help maximize the benefits to your special needs child. There are several different types of Special Needs Trusts and the trust should reflect your child’s uniqueness and specific guidance on how to provide for your child.
Choosing a Trustee is an important consideration. Initially, for a Special Needs Trust you choose yourself and/or your spouse. Next, you need to think of who will care for your child, is willing and able to devote the time and energy, has the ability to properly manage the assets, is willing to learn, is willing to seek advice, and is someone you trust.Guardianship in New Mexico
- Any interested person can apply to the probate court for guardianship of the person and/or property
- The Court will appoint an attorney for the proposed ward
- An independent evaluation will be conducted
- The Court will look to any advanced guardianship designations
- The Court makes the determination as to who is suitable
- The guardianship designation is only a suggestion for the Court, it is not binding
You can plan for your minor children with a guardian designation in a Will. It is only an expression of your desire, the Court is the only entity that can appoint a Guardian over someone else.What Is a Durable Power of Attorney?
This document allows your agent to act on your behalf when you are unavailable or incapacitated. The POA can take effect immediately or upon the happening of a certain event or set of circumstances.Do I Need a Health Care Power of Attorney?
A Health Care POA allows you to designate a person to make healthcare decisions on your behalf. It provides the agent with a duty to make the decision that you would make if you were able. It avoids the need for guardianship. Additional documents should be prepared in order for medical institutions to allow all access to the principals medical records.What Is a Living Will?
A Living Will is a written expression of your desires regarding life sustaining treatment when death is imminent. You can determine whether you want hydration and nutrition, none at all, or everything done possible to prolong life.Your Legacy
How do you want to be remembered? Your Legacy plan can include charitable giving, and pass on your values. Your goals will dictate which estate planning tools will be used in your unique estate plan.When Is a Good Time to Start Planning?
Timing is crucial in estate planning. You should make a plan before you need it. You do not know when you will need it. You may miss opportunities by doing nothing. The State has an plan for you, leaving you out of control of your assets after death.Essential Components of a Comprehensive Estate Plan
At a minimum, estate planning documents should include a Will, a Special Needs Trust (if there are special needs children), a Durable Power of Attorney, a Durable Health Care Power of Attorney, and a Living Will. The next step in taking control over your assets is to decide to get serious now about estate planning. Creating your estate plan is an expression of love and devotion to your spouse, children, and the causes you support.