N.M. Stat. » Chapter 46A — Uniform Trust Code
New Mexico Statutes

N.M. Stat. § 46A-4-402 (2026)

Requirements for creation

✓ current as of May 2026
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A. 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) a charitable trust;

(b) a trust for the care of an animal, as provided in Section 4-408 [46A-4-408 NMSA 1978] of the Uniform Trust Code; or

(c) a trust for a noncharitable purpose, as provided in Section 4-409 [46A-4- 409 NMSA 1978] of the Uniform Trust Code;

(4) the trustee has duties to perform; and

(5) the same person is not the sole trustee and sole beneficiary.

B. A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.

C. A power in a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.

History: Laws 2003, ch. 122, § 4-402.

ANNOTATIONS

Effective dates. — Laws 2003, ch. 122, § 11-1106 made the act effective July 1, 2003.

Law reviews. — For article, "The New Mexico Uniform Trust Code," see 34 N.M.L. Rev. 1 (2004).

Notes of Decisions
Cited in 4 cases (1 in the last 5 years), 2009–2023 · leading case: Welch v. Crow, 2009 OK 20 (Okla. 2009).
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Welch v. Crow, 2009 OK 20 (Okla. 2009). “§ 564-B:A4-402 (2009); NM. Stat. Ann. § 46A-4-402 (2009); N.C. Gen.”
Martinez v. Martinez Trust (N.M. Ct. App. 2018). · cites it 6× “19 {16} NMSA 1978, Section 46A-4-402(A) (2003) of the New Mexico Uniform 20 Trust Code, NMSA 1978, Sections 46A-1-101 to -11-1105 (2003, as amended 21 through 2018) (the Code), provides that: 22 A trust is created only if: 23 (1) the settlor has capacity to create a trust; 9 1…”
Automated Recovery Sys. of New Mexico, Inc. (Bankr. D.N.M. 2023). · cites it 3× “NMSA § 46A-4-402(A) provides: 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 .”
Karelitz v. UNM (N.M. Ct. App. 2012). · cites it 2× “New Mexico has adopted the 3 Uniform Trust Code, Sections 46A-1-101 to -1105, which provides that a charitable 4 trust is created if (1) the settlor has capacity to create a trust, (2) the settlor indicates 5 an intention to create a trust, (3) the trustee has duties to perform,…”
— N.M. Stat. § 46A-4-402(A) — 3 cases
Automated Recovery Sys. of New Mexico, Inc. (Bankr. D.N.M. 2023). “NMSA § 46A-4-402(A) provides: 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 .”
Martinez v. Martinez Trust (N.M. Ct. App. 2018). “19 {16} NMSA 1978, Section 46A-4-402(A) (2003) of the New Mexico Uniform 20 Trust Code, NMSA 1978, Sections 46A-1-101 to -11-1105 (2003, as amended 21 through 2018) (the Code), provides that: 22 A trust is created only if: 23 (1) the settlor has capacity to create a trust; 9 1…”
Karelitz v. UNM (N.M. Ct. App. 2012). “New Mexico has adopted the 3 Uniform Trust Code, Sections 46A-1-101 to -1105, which provides that a charitable 4 trust is created if (1) the settlor has capacity to create a trust, (2) the settlor indicates 5 an intention to create a trust, (3) the trustee has duties to perform,…”
— N.M. Stat. § 46A-4-402(A)(1) — 1 case
Martinez v. Martinez Trust (N.M. Ct. App. 2018). “19 {16} NMSA 1978, Section 46A-4-402(A) (2003) of the New Mexico Uniform 20 Trust Code, NMSA 1978, Sections 46A-1-101 to -11-1105 (2003, as amended 21 through 2018) (the Code), provides that: 22 A trust is created only if: 23 (1) the settlor has capacity to create a trust; 9 1…”
— N.M. Stat. § 46A-4-402(A)(3) — 1 case
Martinez v. Martinez Trust (N.M. Ct. App. 2018). “19 {16} NMSA 1978, Section 46A-4-402(A) (2003) of the New Mexico Uniform 20 Trust Code, NMSA 1978, Sections 46A-1-101 to -11-1105 (2003, as amended 21 through 2018) (the Code), provides that: 22 A trust is created only if: 23 (1) the settlor has capacity to create a trust; 9 1…”
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