Trust vs. Will: Which Is Better for New Mexico Residents?

Trust vs. Will: Which Is Better for New Mexico Residents?

If you're planning your estate in New Mexico, you're likely wondering whether you need a will, a trust, or both. Each tool has its own advantages, depending on your personal situation, family structure, and financial goals. This blog explains the differences between wills and trusts and helps you decide which is better for your specific needs as a New Mexico resident.

What Is a Will?

A will is a legal document that outlines how you want your assets distributed after your death. It also allows you to name a guardian for minor children and appoint a personal representative (executor) to carry out your wishes.

Key features of a will:

• Becomes effective only upon death
  
  
• Must go through probate court
  
  
• Can be updated or revoked at any time while you're alive and mentally competent
  
  
• Public record once submitted to probate
  
  

Wills are generally simpler and less expensive to create than trusts, making them ideal for individuals with modest estates or straightforward distribution plans.

What Is a Trust?

A trust is a legal entity that holds assets on behalf of beneficiaries. It is managed by a trustee, who administers the trust based on your instructions. Unlike a will, a trust becomes effective immediately upon creation, and can continue after your death.

Common types of trusts:

• Revocable Living Trust: Can be changed or revoked during your lifetime
  
  
• Irrevocable Trust: Cannot be changed once established
  
  
• Testamentary Trust: Created through a will and becomes active after death
  
  

Benefits of using a trust:

• Avoids probate
  
  
• Provides privacy (not part of public record)
  
  
• Offers greater control over when and how assets are distributed
  
  
• Can be used to manage assets during your lifetime (in case of incapacity)
  
  

Key Differences Between Wills and Trusts in New Mexico

Here’s a side-by-side comparison tailored for New Mexico residents:

When Is a Will the Right Choice?

A will may be sufficient if:

• You have a relatively small estate
  
  
• You don’t own property in multiple states
  
  
• You want to name guardians for minor children
  
  
• You’re seeking a simpler, more affordable option
  
  

However, all wills must pass through the New Mexico probate system, which can take several months and may result in additional legal fees.

When Is a Trust the Better Option?

A trust may be better if:

• You want to avoid probate entirely
  
  
• You have real estate or assets in multiple states
  
  
• You want privacy (trusts are not public)
  
  
• You wish to manage assets for minor children or special needs beneficiaries
  
  
• You want to protect your estate from disputes or creditors
  
  

In Albuquerque and other parts of New Mexico, many clients choose a revocable living trust to simplify asset transfer and reduce court involvement.

Can You Have Both a Will and a Trust?

Yes — in fact, most people who set up a trust also have a “pour-over will.” This document acts as a safety net, ensuring any assets not placed in the trust before your death will still transfer into it.

This combination allows you to:

• Cover all assets (trust + will)
  
  
• Name guardians for children (via will)
  
  
• Ensure privacy and avoid probate for most of your estate
  

What Happens If You Don’t Have Either?

If you die without a will or trust in New Mexico:

• Your estate goes through intestate succession under state law
  
  
• A judge decides who inherits your property
  
  
• You lose the ability to choose a guardian for minor children
  
  
• The probate process may be longer and more expensive
  
  

Creating a will or trust ensures your wishes are honored — not left to chance or state default rules.

FAQs – Wills and Trusts in New Mexico

Is a trust better than a will in New Mexico?
A trust offers more control, avoids probate, and provides privacy, but a will is simpler and cheaper. The best choice depends on your goals.

Do trusts avoid probate in New Mexico?
Yes, if properly funded. Assets must be retitled in the name of the trust to avoid probate.

Is a trust more expensive than a will?
Upfront, yes — but it can save your family time and legal costs later by avoiding probate.

Can I set up a trust on my own?
Technically, yes — but it’s strongly advised to work with an estate planning attorney to avoid errors and ensure your trust is legally valid.

Do I still need a will if I have a trust?
Yes, a pour-over will is recommended to catch any unfunded assets and name guardians for children.

Get Help Choosing the Right Plan

Not sure whether a will or trust is best for your needs? Let Hernandez Law, LLC guide you through the estate planning process with clarity and care.

We help Albuquerque families create legally sound plans that protect their assets, heirs, and peace of mind.

Call (505) 228-5912 or email dnhnm@yahoo.com to schedule your private consultation.


By appointment only — proudly serving Albuquerque and nearby areas.