New Mexico Will and Trust Laws: Witnesses, Holographic Wills (2026)

Under New Mexico law, an individual 18 or older (or an emancipated minor) who is of sound mind may make a will (NMSA 45-2-501), and the will must be in writing, signed by the testator, and signed by two witnesses who each sign in the presence of the testator and of each other after watching the testator sign (NMSA 45-2-502). Living trusts are governed by chapter 46A of the New Mexico statutes, which "may be cited as the 'Uniform Trust Code'" (46A-1-101).

Three features of New Mexico law shape everything below: the witnesses must sign in each other's presence, the definition of a will in New Mexico's Uniform Probate Code excludes holographic wills, and the harmless-error section is reserved. How other states handle the same questions is on the wills and trusts laws by state hub.

Information last verified on 2026-10-20. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers New Mexico statutes on making, signing, changing and revoking wills (the Uniform Probate Code, NMSA 1978 chapter 45, articles 1, 2 and 2A) and on revocable living trusts (the Uniform Trust Code, NMSA 1978 chapter 46A). It does not cover what happens when someone dies without a will or how estates are administered (see New Mexico probate), small-estate procedures (see the New Mexico small estate affidavit page), powers of attorney (see New Mexico power of attorney laws), or taxes. A living will is a health-care directive, not a will; see the New Mexico advance directive tool.

What makes a will valid in New Mexico?

Capacity is set by section 45-2-501: "An individual eighteen or more years of age who is of sound mind or an emancipated minor who is of sound mind may make a will."

The form is set by section 45-2-502:

"Except as provided in Sections 45-2-506 and 45-2-513 NMSA 1978, a will must be: A. in writing; B. signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and C. signed by at least two individuals, each of whom signed in the presence of the testator and of each other after each witnessed the signing of the will as described in Subsection B of this section." (NMSA 45-2-502)

Read closely, subsection C sets three conditions for each witness:

• What the witness sees. Each witness must have "witnessed the signing of the will." The section does not include an alternative of witnessing the testator's acknowledgment of the signature.
• Whose presence. Each witness signs "in the presence of the testator and of each other." The two witnesses must be together with the testator.
• When. Each witness signs "after" witnessing the signing.

The only exceptions the section names are 45-2-506 (wills executed under another place's law) and 45-2-513 (separate lists of personal property), both described below. Section 45-2-502 contains no notary alternative to the two witnesses.

Who can be a witness

Under section 45-2-505, "A. An individual generally competent to be a witness may act as a witness to a will. B. The signing of a will by an interested witness does not invalidate the will or any provision of it." A beneficiary can serve as a witness without losing the gift.

Wills signed in another state or country

Section 45-2-506 provides that "A written will is valid if executed in compliance with Section 45-2-502 NMSA 1978 or if its execution complies with the law at the time of execution of the place where the will is executed or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national."

The statutory will

New Mexico has enacted the Uniform Statutory Will Act (NMSA 45-2A-1 to 45-2A-17). Under section 45-2A-3, "An individual having capacity to make a will under the laws of this state may make a statutory will under the Uniform Statutory Will Act. The will must be executed in a manner recognized as valid under the laws of this state." The form of the statutory will is set out in section 45-2A-17 and is not reproduced here. As section 45-2A-3 says, a statutory will must still be executed in a manner valid under New Mexico law.

Does a New Mexico will need to be notarized? The self-proving option

No notary is needed for a will to be valid; section 45-2-502 requires two witnesses, not a notary. Notarization enters through the optional self-proving procedure in section 45-2-504. Subsection A allows an attested will to be made self-proved when it is signed, and subsection B allows it afterward:

"B. An attested will may be made self-proved at any time after its execution by the acknowledgment thereof by the testator and the affidavits or affirmation under penalty of perjury of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer's certificate, under official seal, attached or annexed to the will in substantially the following form:" (NMSA 45-2-504(B))

So the testator acknowledges the will and the witnesses give affidavits or affirmations under penalty of perjury, each before an officer authorized to administer oaths, whose certificate under official seal is attached to the will. The statute names an officer authorized to administer oaths, not only a notary. The statutory forms are in section 45-2-504 and are not reproduced here.

The affidavit matters if the will is contested. Under section 45-3-406(B), for a self-proved will in a contested case, "compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed, subject to rebuttal without the testimony of any witness," upon filing the will with the attached acknowledgment and affidavits, "unless there is proof of fraud or forgery affecting the acknowledgment or affidavit." For a will that is not self-proved, section 45-3-406(A) requires the testimony of at least one attesting witness "if he is within New Mexico, competent and able to testify"; otherwise due execution may be proved by other evidence. The rest of the probate process is covered on the New Mexico probate page.

Are handwritten (holographic) wills valid in New Mexico?

Not as holographic wills. The definitions section of New Mexico's Uniform Probate Code, 45-1-201, ends its definition of "will" with this sentence:

"'Will' does not include a holographic will." (NMSA 45-1-201)

Section 45-2-502 applies its writing, signature and two-witness requirements to every will, and its only named exceptions are 45-2-506 and 45-2-513. A document written in the testator's own hand therefore has to meet the same witnessing rule as a typed will.

No harmless-error rule

The model Uniform Probate Code, on which New Mexico's chapter 45 is based, has a harmless-error rule at its section 2-503. New Mexico has not enacted it. Section 45-2-503 is reserved with no text; the compiler's note explains that the 1975 enactment "contained this section number, but no accompanying text" and that "Section 2-503 UPC provides a harmless error provision for failure to comply with the provisions of 2-502 UPC relating to the execution of wills." Part 5 of Article 2, which runs from 45-2-501 to 45-2-517, contains no other section excusing a defect in execution.

Are oral (nuncupative) wills valid?

No. Section 45-2-502(A) requires a will to be "in writing," and Part 5 of Article 2 contains no section that allows an oral will.

Electronic wills and remote witnessing

Article 2 of New Mexico's Uniform Probate Code contains no electronic-will provision. Section 45-2-502(C) requires each witness to sign "in the presence of the testator and of each other." Chapter 45 contains no provision allowing a witness to be present by audio-video link.

Remote notarization is a separate matter. New Mexico's Revised Uniform Law on Notarial Acts (Senate Bill 12 of 2021, NMSA 1978, sections 14-14A-1 to 14-14A-32), effective January 1, 2022, provides that a remotely located individual may meet a requirement to appear before a notarial officer "by using communication technology to appear before a notary public or notarial officer," with identity requirements and an audiovisual recording of the notarial act. The act contains no exception for wills. It governs notarial acts, such as the acknowledgment and affidavits used to make a will self-proved under 45-2-504; it does not change section 45-2-502(C), which still requires the two attesting witnesses to sign in the presence of the testator and of each other.

Emergency-era history, now expired: during the COVID-19 emergency, Executive Order 2020-015 (March 30, 2020), extended indefinitely by Executive Order 2020-039 (June 11, 2020), directed that notaries not be disciplined for notarial acts performed through audio-video technology under set conditions, including direct interaction among the signer, the notary "and any required witnesses," each stating that he or she was located in New Mexico. Executive Order 2022-150 rescinded Executive Order 2020-039 on November 10, 2022, describing it as an order that no longer had "any legal force." Those orders addressed notarial acts only; they did not amend section 45-2-502(C).

Changing or revoking a New Mexico will

Revoking a will

Under section 45-2-507(A), a will or any part of it is revoked:

1. "by executing a subsequent will that revokes the previous will or part expressly or by inconsistency";
2. "by executing another subsequent document in the manner provided for in Section 45-2-502 or 45-2-504 NMSA 1978, or both, that expressly revokes the previous will or part thereof"; or
3. "by performing a revocatory act on the will if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction."

A revocatory act "includes burning, tearing, canceling, obliterating or destroying the will or any part of it," and a burn, tear or cancellation counts "whether or not the burn, tear or cancellation touched any of the words on the will."

Under section 45-2-508, "Except as provided in Sections 45-2-803 and 45-2-804 NMSA 1978, a change of circumstances does not revoke a will or any part of it." Those two exceptions are homicide and divorce.

Divorce and annulment

Section 45-2-804 is New Mexico's divorce rule, and it reaches beyond the will. Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals, a divorce or annulment:

• revokes any revocable disposition or appointment of property to the former spouse in a governing instrument, and any disposition or appointment to a relative of the former spouse;
• revokes any revocable provision giving the former spouse, or a relative of the former spouse, a general or nongeneral power of appointment;
• revokes any revocable nomination of the former spouse, or a relative of the former spouse, "to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent or guardian"; and
• severs property the former spouses held as joint tenants with the right of survivorship, "transforming the interests of the former spouses into equal tenancies in common."

The section's definitions in 45-2-804(A) set its reach and limits:

• A "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."
• "Governing instrument" means one "executed by the divorced individual before the divorce or annulment."
• "Divorce or annulment" includes a divorce or annulment that would exclude the spouse as a surviving spouse under 45-2-802, or a valid proceeding concluded by an order purporting to terminate all marital property rights, including a property division judgment under 40-4-20. "A decree of separation that does not terminate the status of spouse is not a divorce for purposes of this section."

The general definition in section 45-1-201 lists what a governing instrument can be: "a deed, will, trust, insurance or annuity policy, account with POD designation, security registered in beneficiary form (TOD), transfer on death (TOD) deed, pension, profit-sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney," or a similar instrument. A revocable living trust and a revocable beneficiary designation signed before the divorce are therefore covered on the same conditions.

Revoked provisions take effect as if the former spouse and relatives disclaimed them, and a revoked nomination as if they died immediately before the divorce (45-2-804(D)). Under 45-2-804(E), "Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment." Under 45-2-804(C), a severance does not affect a third party who acquired an interest for value in good-faith reliance on an apparent survivorship title, unless a writing declaring the severance was recorded in the appropriate records.

Federal law limits the beneficiary-designation part of this rule. For employer plans governed by ERISA, the U.S. Supreme Court held in Egelhoff v. Egelhoff, 532 U.S. 141 (2001), that federal law pre-empts a state statute that revokes a spouse's beneficiary designation on divorce, as applied to those plans (see the wills and trusts hub).

Marriage after the will

Section 45-2-301 gives a surviving spouse who married the testator after the will was executed, "as an intestate share, no less than the value of the share of the estate he would have received if the testator had died intestate," figured only on the part of the estate that is not devised (or passed under 45-2-603 or 45-2-604) to the testator's children born before the marriage who are not children of the surviving spouse, or to their descendants. The share is not available if "(1) it appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse; (2) the will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or (3) the testator provided for the spouse by transfer outside the will" with the intent that the transfer be in lieu of a provision in the will.

Children born or adopted after the will

Section 45-2-302 gives a child born or adopted after the will was executed, and not provided for in it, a share of the estate. If the testator had no child living when the will was signed, the omitted child receives the value of an intestate share, unless the will left all or substantially all of the estate to the child's other parent, who survives and takes under the will. If the testator had living children and the will made gifts to them, the omitted child shares only in those gifts, on equal terms. Neither rule applies if "it appears from the will that the omission was intentional" or if the testator provided for the child outside the will in lieu of a provision in it. Under 45-2-302(C), a living child left out "solely because he believes the child to be dead" shares as if the child were born after the will.

Limits on what a New Mexico will can do

Community property, not an elective share. New Mexico gives a surviving spouse no elective share; Part 2 of Article 2 (sections 45-2-201 to 45-2-207) is reserved. The spouse's protection comes from community-property ownership. Section 45-2-807(A) provides:

"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 40-3-8 NMSA 1978 shall not be subject to the testamentary disposition of the decedent." (NMSA 45-2-807(A))

Family and personal property allowances. Under section 45-2-402, "A decedent's surviving spouse is entitled to a family allowance of thirty thousand dollars ($30,000)"; if there is no surviving spouse, each minor and dependent child shares $30,000. Under section 45-2-403, "In addition to the family allowance," the surviving spouse is entitled to a value "not exceeding fifteen thousand dollars ($15,000)" in household furniture, automobiles, furnishings, appliances and personal effects, in excess of any security interests.

Omitted spouse and child. Sections 45-2-301 and 45-2-302, described above, protect a spouse married after the will and a child born or adopted after it.

No-contest clauses, in wills and trusts. Section 45-2-517 provides: "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." Because the definition of governing instrument in 45-1-201 includes a will and a trust, the rule is not limited to wills.

Homicide. Under section 45-2-803(B), "An individual who feloniously and intentionally kills the decedent forfeits all benefits" under Article 2 with respect to the decedent's estate, and under 45-2-803(C) the killing revokes revocable dispositions, powers of appointment and fiduciary nominations in favor of the killer in the decedent's governing instruments.

What a spouse and children receive when there is no will at all is explained on the New Mexico probate page.

Gifts of personal items by separate list

Under section 45-2-513, 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." The writing "must be signed by the testator and must describe the items and the devisees with reasonable certainty." It may be prepared before or after the will and altered later.

Keeping the will safe, and the custodian's duty

Under section 45-2-515, a testator or the testator's agent may deposit a will "with the clerk of any district court in New Mexico for safekeeping pursuant to rules of that court." The will is kept confidential and, during the testator's lifetime, is delivered only to the testator or a person the testator authorizes in a signed writing. After the testator's death, the clerk notifies any person designated to receive it or delivers it to the appropriate court.

Section 45-2-516 puts a duty on whoever holds a will: "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." A custodian who fails to produce the will after reasonable notice "is liable to any person aggrieved for the damages that may be sustained by the failure," and one who refuses after a court order "is subject to penalty for contempt of court."

Revocable living trusts in New Mexico

The trust code

Under section 46A-1-101, "Chapter 46A NMSA 1978 may be cited as the 'Uniform Trust Code'." It was enacted by Laws 2003, chapter 122, which took effect July 1, 2003. Section 46A-1-103 defines "revocable," as applied to a trust, as "revocable by the settlor without the consent of the trustee or a person holding an adverse interest."

Under section 46A-11-1104(A), the code generally applies to all trusts "created before, on or after its effective date," except as otherwise provided; the revocability default and the trustee-notice duty described below carry their own July 1, 2003 limits.

Creating a trust

Section 46A-4-402(A) sets the requirements: "A trust is created only if: (1) the settlor has capacity to create a trust; (2) the settlor indicates an intention to create the trust; (3) the trust has a definite beneficiary" or is a charitable trust, a trust for the care of an animal, or a trust for a noncharitable purpose; "(4) the trustee has duties to perform; and (5) the same person is not the sole trustee and sole beneficiary."

Those requirements include no witness or notary formality. New Mexico also does not require a written trust instrument in every case. Section 46A-4-407 provides:

"Except as required by a statute other than the Uniform Trust Code, a trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established only by clear and convincing evidence." (NMSA 46A-4-407)

Capacity

Under section 46A-6-601, "The capacity required to create, amend, revoke or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will."

Revocable by default, with a date limit

Section 46A-6-602(A) states: "Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before July 1, 2003."

How to revoke or amend a revocable trust

Under section 46A-6-602(C), the settlor may revoke or amend a revocable trust:

1. "by substantial compliance with a method provided in the terms of the trust"; or
2. if the trust provides no method, or its method is not expressly made exclusive, by "a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust," or by "any other method manifesting clear and convincing evidence of the settlor's intent."

Creditors

Under section 46A-5-505(A)(1), "during the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor's creditors." After the settlor's death, under 46A-5-505(A)(3), property of a trust that was revocable at death is subject to the settlor's creditors, the costs of administering the estate, funeral expenses and "statutory allowances to a surviving spouse and children to the extent the settlor's probate estate is inadequate to satisfy those claims, costs, expenses and allowances."

Certification of trust

Under section 46A-10-1013(A), "Instead of furnishing a copy of the trust instrument to a person other than a beneficiary, the trustee may furnish to the person a certification of trust." The certification covers the trust's existence and date, the settlor, the acting trustee, the trustee's powers, revocability, co-trustee authority, the trust's taxpayer identification number, how title is taken and, if an agent will act, that delegation is not prohibited. Any trustee may sign it, and a recipient using it to affect title to real property may require it to be acknowledged so it can be recorded (46A-10-1013(B)). It need not contain the trust's dispositive terms (46A-10-1013(D)). A person who relies on it "without knowledge that the representations contained therein are incorrect is not liable to any person for so acting" (46A-10-1013(F)).

Notice to beneficiaries after the settlor dies

Under section 46A-8-813(B)(3), a trustee, "within sixty days after the date the trustee acquires knowledge" that a formerly revocable trust has become irrevocable, "whether by the death of the settlor or otherwise," must notify the qualified beneficiaries of the trust's existence, the identity of the settlor, the right to request a copy of the trust instrument and the right to a trustee's report. Under 46A-8-813(E), that duty does not apply to a trustee who accepted the trusteeship before July 1, 2003, to an irrevocable trust created before that date, or to a revocable trust that became irrevocable before that date. Under 46A-8-813(F), a settlor's knowing, conspicuous waiver of these duties is effective, but only while the trustee is a regulated financial service institution qualified to do trust business in New Mexico.

Contesting a revocable trust after the settlor dies

Section 46A-6-604(A) sets the deadline:

"A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor's death within the earlier of: (1) three years after the settlor's death; or (2) one hundred twenty days after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address and of the time allowed for commencing a proceeding." (NMSA 46A-6-604(A))

Under 46A-6-604(B), after the settlor's death the trustee may distribute the trust property according to its terms and is not liable for doing so unless the trustee knows of a pending contest, or a potential contestant notified the trustee of a possible contest and "a judicial proceeding is commenced within sixty days after the contestant sent the notification."

Pour-over wills

Section 45-2-511(A) allows a will to "validly devise property to the trustee of a trust established or to be established" during the testator's lifetime by the testator or another person (including a funded or unfunded life insurance trust), or at the testator's death by devise, "if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will," executed before, with or after the will, or in the will of another individual who predeceased the testator, "regardless of the existence, size or character of the corpus of the trust." The devise "is not invalid because the trust is amendable or revocable or because the trust was amended after the execution of the will or the testator's death."

Two more rules complete the section. Under 45-2-511(B), unless the will provides otherwise, the property "is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised" and is administered under the trust's terms, including amendments made before or after the testator's death. Under 45-2-511(C), "Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise to lapse."

New Mexico wills and trusts at a glance

Making a will in practice

The site's free New Mexico will-maker tool can help draft a basic will. Whatever produces the document, signing must follow section 45-2-502, with both witnesses present together with the testator, and the self-proving procedure in 45-2-504 can be completed at the same time. Complex estates, blended families, community-property questions, business interests or tax concerns are reasons to consult a lawyer licensed in New Mexico. The tool is not legal advice.

Members of the armed forces have a federal option as well: under 10 U.S.C. 1044d, a military testamentary instrument is exempt from state formalities and has the same legal effect as a will executed under the law of the state where it is presented for probate (see the wills and trusts hub).

Related pages

• Wills and trusts laws by state
• New Mexico probate
• New Mexico small estate affidavit
• New Mexico power of attorney laws

This article provides general legal information about New Mexico law on wills and revocable trusts as of 2026-10-20. It is not legal advice. For advice about a specific situation, contact a lawyer licensed in New Mexico or the probate court in your county.

Last updated: 2026-10-20.

Frequently Asked Questions

How many witnesses does a will need in New Mexico?

Two. Under NMSA 45-2-502(C), at least two individuals must sign the will, each in the presence of the testator and of each other after witnessing the testator's signing of the will.

Is a handwritten will valid in New Mexico?

Not as a holographic will. The definition of a will in New Mexico's Uniform Probate Code states that it does not include a holographic will (NMSA 45-1-201), and section 45-2-502 applies its writing, signature and two-witness requirements without an exception for a handwritten document.

Does a will have to be notarized in New Mexico?

No. Section 45-2-502 requires two witnesses and contains no notary requirement. An officer authorized to administer oaths is used only if the testator and witnesses make the will self-proved under 45-2-504, at signing or later.

Are oral wills valid in New Mexico?

No. Section 45-2-502(A) requires a will to be in writing, and Part 5 of Article 2 of New Mexico's Uniform Probate Code contains no section allowing an oral (nuncupative) will.

Can I make an electronic will or use video witnesses in New Mexico?

Article 2 of New Mexico's Uniform Probate Code contains no electronic-will provision, and section 45-2-502(C) requires each witness to sign in the presence of the testator and of each other. The Revised Uniform Law on Notarial Acts, effective January 1, 2022, allows remote notarial acts, such as the self-proving acknowledgment and affidavits, but does not change that witness rule; see the electronic-wills section above.

What if a New Mexico will was not signed correctly?

Section 45-2-503, the number the model Uniform Probate Code uses for its harmless-error rule, is reserved in New Mexico with no text, so Part 5 of Article 2 contains no rule treating a defectively executed document as a will. A will executed elsewhere can be valid under the other place's law (45-2-506).

Does divorce revoke a will in New Mexico?

Under NMSA 45-2-804, divorce or annulment revokes revocable gifts, powers of appointment and fiduciary nominations for the former spouse and the former spouse's relatives in a will signed before the divorce, unless the will, a court order or a contract dividing the marital estate provides otherwise. The same section reaches revocable trusts and other governing instruments with conditions; see the divorce section above.

Can I leave my spouse out of my will in New Mexico?

New Mexico has no elective share. Under NMSA 45-2-807(A), one-half of the community property belongs to the surviving spouse at death, and only the other half is subject to the decedent's will (community property held as joint tenancy is excluded). A spouse married after the will was signed may take a share under 45-2-301 unless an exception applies.

Is a living trust revocable in New Mexico?

For a trust created under an instrument executed on or after July 1, 2003, yes, unless its terms expressly provide that it is irrevocable (NMSA 46A-6-602(A)). That default does not apply to trusts created under earlier instruments.

How long do you have to contest a revocable trust in New Mexico?

Under NMSA 46A-6-604(A), within the earlier of three years after the settlor's death or 120 days after the trustee sent the person a copy of the trust instrument and the notice that section describes.