Updated January 25, 2024
The New Mexico living trust is an alternative method of divesting an estate, wherein the estate is signed over to trust with instructions on how it will be divided if the creator (the Grantor) dies or becomes incapacitated. The advantages to a living trust are that it avoids probate, it can protect an estate from creditors, and it gives provisions for how an estate will be handled should the Grantor become ill or incapacitated. For large estates, especially those with multiple properties, accounts, and holdings especially, a living trust allows the inheritors to avoid lengthy probate court proceedings.
Laws – Chapter 46A (Uniform Trust Code)
Will (Last Will and Testament) – You will need to use a Will to divest any assets/property which are not included in your living trust. Any property placed in Will will undergo probate.
Individual Roles
There are four (4) principal roles that must be assigned in a living trust:
Grantor (or “Settlor”) – The individual who creates and funds the living trust.
Trustee – The person who is placed in control of the trust.
Successor Trustee – If the Trustee becomes incapacitated, ill, or dies, this person will become the active Trustee.
Beneficiaries – The individuals amongst whom the estate is to be divided.
Types
Irrevocable – An irrevocable trust cannot be changed in any way or revoked once it has been created (except to change beneficiaries), but it will give your assets protected from creditors.
Revocable – A revocable trust can be altered, amended, or revoked by the Trustee.
How to Make a Living Trust in New Mexico
Anyone can create a living trust in New Mexico, as long as they are of the capacity and have properly stated their inclination to do so. All that is needed, is for the Grantor to create a document that names the trust, the beneficiaries, the Trustee, and itemizes the estate and how it will be divided. In accordance with § 46A-4-402, the same person cannot be the sole beneficiary and the sole trustee in a living trust. The document should be signed before a Notary Public. Once a trust has been created, all assets held in the estate must be signed over to the trust in order for it to be functional.
Motor Vehicles – To change the ownership of a vehicle over to your living trust, you will need to complete a New Mexico Bill of Sale and transfer the vehicle title through the New Mexico DMV.
Real Estate – If you have any real estate that you wish to place in the trust, you will need to fill out a New Mexico Deed, putting it in the name of the living trust. When you sign the deed, a Notary Public must be present. The document then should be given to the County Clerk’s Office.
Financial Accounts – Not all bank accounts will be transferred in the same manner, so it will be important to inquire with your account manager how they handle this procedure. You should be prepared to present a copy of your living trust or a certification letter giving the proper name of the living trust. Your bank will either change the name of the account holder to the trust’s name or they will create a new account for the living trust.
Do I Need a Living Trust?
New Mexico is one of the 18 states which has adopted the Uniform Probate Code, a simplified probate process, so creating a living trust is not always the most effective choice to make regarding your estate. If your estate is valued at $30,000 or less, your inheritor can bypass probate altogether by filing a Small Estate Affidavit 30 days after your death. A living trust is most ideal if you have complicated business affairs and a large estate in your name. Creating a trust ensures that your estate will be handled according to your wishes and can protect it from creditors.