Chapter 45 — Chapter 45

tangible personal property. A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the wri…

A. A contract to make a will or devise or not to revoke a will or devise or to die intestate, if executed after the effective date of this article, may be established only by: (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will…

A will may be deposited by the testator or his agent with the clerk of any district court in New Mexico for safekeeping pursuant to rules of that court. The will shall be kept confidential. During the testator's lifetime, a deposited will shall be delivered only to him or to a pe…

A. Any person having custody of a will shall, as soon as he is informed of the death of the testator, deliver the will to a person able to secure its probate or, if none is known, to an appropriate court. B. If any person having the custody of a will fails to produce the will as …

A provision in a governing instrument purporting to penalize an interested person for contesting the governing instrument or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings. History: 1978 Comp., § 45-2-517…

In the absence of a finding of a contrary intention, the rules of construction in Chapter 45, Article 2, Part 6 NMSA 1978 control the construction of a will. History: 1953 Comp., § 32A-2-601, enacted by Laws 1975, ch. 257, § 2-601; 1976 (S.S.), ch. 37, § 3; repealed and reenacted…

A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator's death, subject to the provisions of Section 45-2-101 NMSA 1978. History: 1978 Comp., § 45-2-602, enacted by Laws 1993, ch. 174, § 41.

A. As used in this section: (1) "alternative devise" means a devise that is expressly created by the will and, under the terms of the will, can take effect instead of another devise on the happening of one or more events, including survival of the testator or failure to survive t…

A. Except as provided in Section 45-2-603 NMSA 1978, a devise, other than a residuary devise, that fails for any reason becomes a part of the residue. B. Except as provided in Section 45-2-603 NMSA 1978, if the residue is devised to two or more persons, the share of a residuary d…

A. If a testator executes a will that devises securities and the testator then owned securities that meet the description in the will, the devise includes additional securities owned by the testator at death to the extent the additional securities were acquired by the testator af…

sale, condemnation or insurance; sale by conservator or agent. A. A specific devisee has a right to specifically devised property in the testator's estate at the testator's death and: (1) any balance of the purchase price, together with any security agreement, owed by a purchaser…

A specific devise passes subject to any mortgage interest existing at the date of death without right of exoneration regardless of a general directive in the will to pay debts. History: 1953 Comp., § 32A-2-607, enacted by Laws 1975, ch. 257, § 2-607; repealed and reenacted by Law…

In the absence of a requirement that a power of appointment be exercised by a reference or by an express or specific reference to the power, a general residuary clause in a will or a will making general disposition of all of the testator's property expresses an intention to exerc…

A. Property a testator gave in his lifetime to a person is treated as a satisfaction of a devise in whole or in part only if: (1) the will provides for deduction of the gift; (2) the testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or …

In the absence of a finding of a contrary intention, the rules of construction in Chapter 45, Article 2, Part 7 NMSA 1978 control the construction of a governing instrument. The rules of construction in Chapter 45, Article 2, Part 7 NMSA 1978 apply to a governing instrument of an…

A. For the purposes of the Uniform Probate Code, except as provided in Subsection D of this section, an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by one hundred twenty hours is deemed t…

instrument. The meaning and legal effect of a governing instrument is determined by the local law of the state selected in the governing instrument unless the application of that law is contrary to the provisions relating to allowances described in Chapter 45, Article 2, Part 4 N…

requirement. A powerholder's substantial compliance with a formal requirement of appointment imposed in a governing instrument by the donor, including a requirement that the instrument exercising the power of appointment make reference or specific reference to the power, is suffi…

exceptions. A. As used in this section: (1) "adoptee" has the meaning set forth in Section 45-2-115 NMSA 1978; (2) "child of assisted reproduction" has the meaning set forth in Section 45-2- 120 NMSA 1978; (3) "distribution date" means the date when an immediate or postponed clas…

designation; transfer-on-death registration; deceased beneficiary. A. As used in this section: (1) "alternative beneficiary designation" means a beneficiary designation that is expressly created by the governing instrument and, under the terms of the governing instrument, can tak…

of trust; substitute takers. A. As used in this section: (1) "alternative future interest" means an expressly created future interest that can take effect in possession or enjoyment instead of another future interest on the happening of one or more events, including survival of a…

form of distribution if none specified. If a class gift in favor of "descendants", "issue" or "heirs of the body" does not specify the manner in which the property is to be distributed among the class members, the property is distributed among the class members who are living whe…

stirpes. A. As used in this section: (1) "deceased child" or "deceased descendant" means a child or a descendant who either predeceased the distribution date or is deemed to have predeceased the distribution date pursuant to the provisions of Section 45-2-702 NMSA 1978; (2) "dist…

The doctrine of worthier title is abolished as a rule of law and as a rule of construction. Language in a governing instrument describing the beneficiaries of a disposition as the transferor's "heirs", "heirs at law", "next of kin", "distributees", "relatives" or "family" or lang…

If an applicable statute or a governing instrument calls for a present or future distribution to or creates a present or future interest in a designated individual's "heirs", "heirs at law", "next of kin", "relatives" or "family" or language of similar import, the property passes…

ANNOTATIONS Repeals. — Laws 2001, ch. 290, § 18, repealed 45-2-801 NMSA 1978, as amended by Laws 1995, ch. 210, § 21, relating to a disclaimer of property interests, effective July 1, 2001. For provisions of former section, see the 2000 NMSA 1978 on NMOneSource.com. For present c…

A. An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death. A decree of separation that does not termin…

joint assets, life insurance and beneficiary designations. A. As used in this section: (1) "disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument; and (2) "revocable", with res…

divorce; no revocation by other changes of circumstances. A. As used in this section: (1) "disposition or appointment of property" includes a transfer of an item of property or other benefit to a beneficiary designated in a revocable trust or other governing instrument; (2) "divo…

The district court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor's intention if it is proved by clear and convincing evidence what the transferor's intention was and that the terms of the governing instrument were affe…

To achieve the transferor's tax objectives, the district court may modify the terms of a governing instrument in a manner that is not contrary to the transferor's probable intention. The district court may provide that the modification has retroactive effect. History: 1978 Comp.,…

A. Upon the death of either spouse, one-half of the community property belongs to the surviving spouse, and the other half is subject to the testamentary disposition of the decedent, except that community property that is joint tenancy property under Subsection B of Section 40-3-…

1, 1973. If a wife has executed a will prior to July 1, 1973, which remains unrevoked or unamended and in which she has not exercised a power of testamentary disposition over her one-half interest in the community property by specific reference thereto and affirmative disposition…

A. A nonvested property interest is invalid unless: (1) when the interest is created, it is certain to vest or terminate no later than twenty-one years after the death of an individual then alive; or (2) the interest either vests or terminates within ninety years after its creati…

created. A. Except as provided in Subsections B and C of this section and except as provided in Subsection A of Section 45-2-905 NMSA 1978, the time of creation of a nonvested property interest or a power of appointment is determined under general principles of property law. B. U…

Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the ninety years allowed by each Paragraph (2) of Subsections A, B or C of Section 45-2-901 NM…

A. Section 45-2-901 NMSA 1978 does not apply to: (1) a nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of: (a) a premarital or postmarital agreement; (b) a sepa…

A. Except as extended by Subsection B of this section, Sections 45-2-901 through 45-2-905 NMSA 1978 apply to a nonvested property interest or a power of appointment that is created on or after July 1, 1992. For purposes of this section, a nonvested property interest or a power of…

Sections 45-2-901 through 45-2-905 NMSA 1978 supersede the rule of the common law known as the rule against perpetuities. History: 1978 Comp., § 45-2-1006, enacted by Laws 1992, ch. 66, § 6; recompiled as 1978 Comp., § 45-2-906 by Laws 1993, ch. 174, § 66; 1995, ch. 210, § 29.

History: 1978 Comp., § 45-2-907, enacted by Laws 1995, ch. 210, § 30; repealed by Laws 2016, ch. 69, § 725.

As used in Sections 45-2-909 through 45-2-914 NMSA 1978: A. "nonvested easement in gross" means a nonvested easement that is not created to benefit or that does not benefit the possessor of any real property in the possessor's use of it as the possessor; B. "option in gross with …

An option in gross with respect to an interest in real property or a preemptive right in the nature of a right of first refusal in gross with respect to an interest in real property becomes invalid if it is not actually exercised within thirty years after its creation. History: 1…

A lease of real property to commence at a time certain or upon the occurrence or nonoccurrence of a future event becomes invalid if its term does not actually commence in possession within thirty years after its execution. History: 1978 Comp., § 45-2-910, enacted by Laws 2011, ch…

A nonvested easement in gross becomes invalid if it does not actually vest within thirty years after its creation. History: 1978 Comp., § 45-2-911, enacted by Laws 2011, ch. 124, § 38.

A possibility of reverter preceded by a fee simple determinable, a right of entry preceded by a fee simple subject to a condition subsequent or an executory interest preceded by either a fee simple determinable or a fee simple subject to an executory limitation becomes invalid, a…

A. Section 45-2-912 NMSA 1978 does not apply to a possibility of reverter, right of entry or executory interest that is held by a charity, a government or governmental agency or subdivision excluded from the provisions of Section 45-2-901 NMSA 1978 by Subsection E of Section 45-2…

Sections 45-2-908 through 45-2-913 NMSA 1978 apply only to a property interest or arrangement affecting real property that is created on or after January 1, 2012. History: 1978 Comp., § 45-2-911, enacted by Laws 2011, ch. 124, § 41.

This act [45-2A-1 to 45-2A-17 NMSA 1978] may be cited as the "Uniform Statutory Will Act". History: Laws 1991, ch. 173, § 1.

A. If property becomes distributable by a personal representative or trustee to an individual under the age specified in the will or, if the will does not specify an age, under the age of twenty-three years, or to an individual who the personal representative or trustee determine…

A. A will incorporating by reference the terms of the Uniform Statutory Will Act does not exercise a power of appointment unless: (1) the will complies with any conditions imposed on the exercise of the power; (2) the appointment is within the scope of the power; and (3) the will…