Albuquerque Estate Planning Lawyers

Albuquerque Estate Planning Attorney

Providing Peace of Mind

Estate planning seems like it only needs to be done if you have a large estate. However, anyone who has property or who might need someone to take over in the event of incapacity, would benefit from setting up an estate plan. For assistance in planning your estate, speak with an Albuquerque estate planning lawyer. A considered, thoughtful plan can allow you to avoid guardianship or conservatorship during your lifetime, avoid probate at your death and avoid delays in distributing your estate to loved ones. At Maxwell Gilchrist, we can provide guidance to help you develop the best plan for you and your loved ones in the event of your death or incapacity. You will gain peace of mind once you prepare an estate plan as you have provided guidance and minimized the stress of settling your estate upon your death.

Speaking with an attorney can help put your mind at ease, help you create a will and living trust, walk you through the probate process, or help you make other important decisions. You will have the assurance of knowing that all of your valuable assets are being protected and will go to the beneficiaries that you have put in place. For more assistance with planning your estate, speak with a law firm like Gilchrist Law Firm, P.C.

Do I Need an Estate Plan?

Yes, you need an estate plan. In fact, an estate plan is so important that the State of New Mexico has put a plan in place for you. Upon your death, if you do not have an estate plan, then the Court will appoint a personal representative and your property will distributed as set forth in the New Mexico intestate (without a will) statute. If you do not name a financial agent or a healthcare agent, you are relying upon the New Mexico courts to name one for you. You do, however, have a choice in how you want your state administered and to whom you leave your property. You also have a choice to name a financial agent and healthcare agent who can act on your behalf in the event of your incapacity. At Maxwell Gilchrist, our Albuquerque estate planning lawyer can assist you and your family with the following life events:

Planning for Incapacity

In the event that you become incapacitated, you will need to have another person manage your affairs. In New Mexico, a community state, if your spouse is a joint owner (most likely) of your financial assets, then your spouse should be able to manage the community property on your behalf. However, what happens if you are not married, but in a long-term relationship? What happens if you are single? In those cases, if an agent is not named, then the party seeking to manage your financial affairs will need to ask the court to appoint a conservator (a financial agent) to act on your behalf. Prior to appointing a conservator, the person seeking to manage your financial affairs will need to have the court find you are incompetent. Once you are found to be incompetent, then the a conservator will be appointed to manage your financial affairs. This can be a costly and an emotionally draining situation for your loved ones. This process may cause conflict within your family.

You can avoid the conservatorship process by appointing an agent and ideally, a successor agent. You will be able to name someone you trust to manage your finances, including paying your bills, taking distributions from your retirement accounts, selling your real estate and managing the bank accounts. A will does not provide this power to your agent as a will only becomes effective upon death.

Preparing for Medical Decisions

In addition to naming a financial agent, it is important to name a healthcare agent. An advanced healthcare directive allows you to name someone you trust, such as a close friend or a family member, to make medical decisions on your behalf , to speak to your medical providers and receive and review your medical records in the event that you are incapacitated. The New Mexico advanced healthcare directive also includes instructions to your agent regarding your preferred medical treatments as well as direction on life-prolonging measures in the event that you become permanently unconscious or terminally ill. Although these are not easy things to think or speak about, it is vital to your family’s peace of mind that you provided guidance on end-of-life decisions. Our Albuquerque estate planning lawyers will guide through the advanced healthcare directive and take the time to discuss the various options available.

Minimizing the Probate Process

Most our estate planning clients believe that a will avoids probate. Unfortunately, a will, by itself, does not avoid probate. It can make the process more easy and simple for your family. Probate is the court process in which title that is held in your name is transferred to your estate and then distributed, either as is specified in a will, or a trust, or by New Mexico’s plan for you. The probate court will be involved in the process until your estate is settled and distributed. This can be expensive and time consuming. If you do decide to rely solely on a will, make sure that your spouse and/or your children have immediate access to cash to pay bills and other living expenses while the estate is being probated. It can weeks, months or even years before the estate funds are fully settled and distributed.Our Albuquerque estate planning lawyers can help advise you with the proper tools, based on your unique situation, which may avoid probate and allowing your assets to be transferred quickly, privately and inexpensively.

Last Wills and Testaments

A last will and testament gives clear instructions on what property will be distributed and to whom. It also can appoint guardianship for children who are minors and will need continuing care until they reach the age of 18. If you are hoping that your estate will avoid probate, a last will and testament may still be wise to create as a means of protecting your property and other assets.

Living Trusts

Living trusts are a good way to avoid probate, as they fully protect all of the grantor’s assets. Once the grantor passes away, those who are named beneficiaries will have much quicker access to these assets. A living trust is much more difficult to legally challenge, especially when that living trust has continued to be used for placing assets in and out of that trust.

It is more difficult as it must be proven that you were incapable of properly handling your own financial assets to successfully challenge a living will.

Trusts can serve as a huge benefit to you and your family if you become incapable of handling your assets in the event of advanced age, illness, or injury. If this happens, and you have a spouse who is the co-trustee, then your spouse will have complete control over the trust and the property within it. Because of this, there will likely be no need for a conservator or guardian to be put in place of the trust by the court.

Durable Financial Power of Attorney

For those who are worried about their bank accounts or other assets being lost due to suddenly becoming physically or mentally unable to handle their financial assets, naming a durable financial power of attorney is an option.

Naming an individual your durable financial power of attorney can become effective right away, or you can determine a specific time, such as if there were a medical event that caused you to become physically incapable of managing your assets. A durable financial power of attorney can be like a fiduciary, as this role includes managing finances for someone else on their behalf and not for their own benefit.

An estate planning attorney can help you in deciding on an individual to name a power of attorney.

Advanced Health Care Directives

An advanced health care directive document includes everything that you wish to happen in the event that you were to become incapacitated due to a health issue or injury. It gives a clear outline of medical directions for your loved ones to follow if you become unable to give consent for medical procedures. Another option is to appoint a durable power of attorney for your health care needs, who also serves as a sort of fiduciary to see that your plan is carried out.

There are several choices that you can determine to be carried out in the event that you do become medically incapacitated. Some of these choices to be made include:

• If you wish CPR to be used or a defibrillator.
• If you wish to be put on a ventilator.
• If you wish to use a feeding tube.
• If pronounced brain dead, if you wish to be placed on life support.
• If you wish to be placed in a care facility if you are incapable of caring for yourself.

Providing for Minor Children

If you have minor children, it is imperative that you prepare an estate plan that addresses their physical and financial care. Parents with young children may want to consider a plan which could alleviate work burdens on the surviving spouse so that the surviving spouse could devote more time to the children. Parents with minor children also need to plan what will happen to the minor children should both parents die at the same time or within a short time of each other. This worst case plan should include those who you want to raise your children (a guardian) as well should manage the assets left to the minor child (conservator). If you do not name a guardian and/or a conservator, a person that you may not want could be appointed to act on behalf of your minor children. If you do not take the time to name a guardian and/or a conservator, then a court will be forced to decide for you. You know who would best raise your children if you were unable to do so. Give yourself peace of mind, knowing that your children will be protected by someone you know and trust by preparing a comprehensive estate plan with our Albuquerque estate planning lawyers.

Estate Planning is So Much More than Preparing Documents

Your estate plan will be set forth in the various documents addressing some of the issues discussed above. However, estate planning has an emotional element and you may not have considered the various scenarios that can arise in the event of your incapacity or death. At Maxwell Gilchrist, our estate planning lawyers will sit down with you to discuss your goals and your fears as well as your current assets so that we will be able to guide you in designing a plan that will work for you and your family.

FAQs

Q: How Much Does an Estate Have to Be Worth to Go to Probate in New Mexico?

A: In New Mexico, an estate must be worth at least $50,000 for it to go to probate. When the estate is worth less than $50,000, it is considered a small estate, and no probate litigation is necessary. Sometimes, an estate may avoid probate if you have no property and all other assets have been covered under transfer-upon-death documentation.

Q: Can I Write My Own Will in New Mexico?

A: Yes, you can write your own will in New Mexico. For a will to be considered legally valid, a paper copy must be available, as any digital copy will not be considered valid. It must be dated so that it will not be confused with other estate planning documents. Also, according to state laws, two witnesses must sign the document.

Q: Can a Will Be Contested in New Mexico?

A: Yes, a will can be contested in New Mexico. In order to do so, you should be known as an interested party, meaning that you have some interest in the estate in question. Someone who is an interested party may include someone who is named within a will or living trust or named in an earlier created will. It can also be someone who would be considered, according to New Mexico laws, someone who would inherit the estate.

Q: How Does an Estate Planning Lawyer Help Create a Valid Will in New Mexico?

A: There are several ways that an estate planning lawyer can help create a valid will in New Mexico. First, they can help ensure that the will is legally valid by following all of the requirements, including the proper language in the will, considering tax ramifications and creditor claims, carrying out due diligence, and showing you how to prepare for the probate process.

Consult an Estate Planning Attorney in New Mexico

If you have not yet started estate planning, it’s never too early to start. Even if you are younger, it is still wise to have your affairs in order so that your loved ones will know what to do in the unfortunate event of your death. Having an estate plan is a very loving thing to do as it will make the process of passing along assets to family members and beneficiaries much easier. Contact the Gilchrist Law Firm, P.C., for assistance with your estate planning needs.