Certificate of Trust — New Mexico UTC Adopted
State-specific requirements for a Certificate of Trust in New Mexico.Create yours now →
Certificate of Trust · At a glance
New Mexico · summary of the record on file
NMSA 1978, Chapter 46A (New Mexico Uniform Trust Code), enacted 2003 (Laws 2003, ch. 122), effective July 1, 2003; recompiled 2007 (Laws 2007, ch. 128)Citation text is shown as currently recorded. No source URL is on file for this state.Source URL missing · unverified- Notary: Notarization is not required for validity of the trust itself, though it is strongly recommended and often required by financial institutions.
- Witnesses: New Mexico does not require witnesses for trust execution under the NM UTC.
- Recording: For the certification of trust affecting real property title, the recipient may require acknowledgment (notarization) so it can be recorded.
- Source URL: https://law.justia.com/codes/new-mexico/chapter-46a/article-10/section-46a-10-1013/
- Last verified: 2026-09-18
- Legal review: Not performed
Statutory Citation
NMSA 1978, Chapter 46A (New Mexico Uniform Trust Code), enacted 2003 (Laws 2003, ch. 122), effective July 1, 2003; recompiled 2007 (Laws 2007, ch. 128)
How a Certificate of Trust works in New Mexico
Certification Requirements
NMSA 46A-10-1013. Instead of furnishing the trust instrument to a non-beneficiary, the trustee may furnish a certification of trust containing: (1) that the trust exists and the date the trust instrument was executed; (2) the identity of the settlor; (3) the identity and address of the currently acting trustee; (4) the powers of the trustee; (5) the revocability or irrevocability of the trust and the identity of any person holding a power to revoke; (6) the authority of co-trustees to sign or authenticate and whether all or less than all are required to exercise trustee powers; (7) the trust's taxpayer identification number; (8) the manner of taking title to trust property; (9) if an action is to be undertaken through an agent, that delegation to an agent is not prohibited by the trust instrument. The certification must state that the trust has not been revoked, modified, or amended in any manner that would cause the representations to be incorrect. It need not contain the dispositive terms. A recipient may require the trustee to furnish excerpts from the trust instrument. A person acting in reliance without knowledge of incorrectness is not liable. For real property transactions, the recipient may require the certification to be acknowledged by a trustee so as to allow it to be recorded. A person making a bad-faith demand for the full trust instrument is liable for damages.
New Mexico's certification of trust is governed by NMSA 46A-10-1013 under the New Mexico Uniform Trust Code (NMSA 1978, Chapter 46A, enacted 2003, effective July 1, 2003; recompiled 2007). The statute provides that instead of furnishing the trust instrument to a non-beneficiary, the trustee may furnish a certification of trust containing: that the trust exists and the date the trust instrument was executed; the identity of the settlor; the identity and address of the currently acting trustee; the powers of the trustee; the revocability or irrevocability of the trust and the identity of any person holding a power to revoke; the authority of co-trustees to sign or authenticate and whether all or less than all are required to exercise trustee powers; the trust's taxpayer identification number; the manner of taking title to trust property; and, if an action is to be undertaken through an agent, that delegation to an agent is not prohibited by the trust instrument.
Common mistakes that get certificates rejected
A common error is omitting the agent delegation declaration required by NMSA 46A-10-1013(9). This ninth element is unique to New Mexico and must state whether delegation to an agent is permitted by the trust instrument. Another mistake is assuming New Mexico allows perpetual dynasty trusts. The state retains the Rule Against Perpetuities under NMSA 45-2-901, which limits trust duration to 21 years after the death of an individual then alive. Failing to include the taxpayer identification number is another common error, since NMSA 46A-10-1013 requires it. A certification that does not include the statement that the trust has not been revoked or amended to make representations incorrect also falls short of the statute.
What makes New Mexico different
New Mexico's Uniform Trust Code is codified at NMSA 1978, Chapter 46A, enacted 2003 and recompiled 2007. The certification of trust statute at NMSA 46A-10-1013 includes a unique ninth required element regarding agent delegation not prohibited by the trust instrument. New Mexico is a community property state, which provides tax basis advantages for married couples using community property trusts. The state adopted the Uniform Trust Decanting Act in 2017, providing flexible trust modification tools. New Mexico does not have a DAPT statute and retains the Rule Against Perpetuities, limiting dynasty trust planning. The state imposes a state income tax on trust income for resident trusts but has no state estate or inheritance tax. New Mexico's trust code is well-integrated with its Uniform Probate Code, providing a cohesive estate planning framework.
Frequently asked questions
What is the ninth required element unique to New Mexico's certification of trust?
Under NMSA 46A-10-1013, the certification of trust must include a statement that if an action is to be undertaken through an agent, delegation to an agent is not prohibited by the trust instrument. This ninth required element is not found in the standard UTC certification model and reflects New Mexico's concern with agent delegation authority in trust administration. The inclusion of this element ensures that the recipient is informed whether the trustee may delegate trust actions to an agent.
How does New Mexico's community property status affect trust planning?
New Mexico is a community property state, which can provide significant tax basis advantages for married couples using community property trusts. When a married couple holds property as community property and places it in a trust, the trust can preserve the community property character for tax purposes. This can provide a step-up in basis at death for the entire community property interest, reducing capital gains tax exposure for the surviving spouse and beneficiaries.
Does New Mexico allow perpetual dynasty trusts?
No. New Mexico has not abolished the Rule Against Perpetuities. Under NMSA 45-2-901 (Uniform Probate Code), the statutory rule against perpetuities requires interests to vest or terminate within 21 years after the death of an individual then alive. However, NMSA 45-2-904 provides exceptions for certain interests including property interests held in trust, which can provide some flexibility in dynasty trust planning.
Can a New Mexico trust be decanted to modify its terms?
Yes. New Mexico adopted the Uniform Trust Decanting Act in 2017 (NMSA 46-12-101 through 46-12-129), which allows trustees to modify trust terms by appointing trust property to a new trust. The decanting provisions provide flexible trust modification tools without requiring court approval or beneficiary consent in many cases, making New Mexico a favorable jurisdiction for trust administration and modification. This provision reflects the state's approach to trust certification.
Execution Requirements
New Mexico does not require witnesses for trust execution under the NM UTC. Notarization is not required for validity of the trust itself, though it is strongly recommended and often required by financial institutions. For the certification of trust affecting real property title, the recipient may require acknowledgment (notarization) so it can be recorded. New Mexico permits remote online notarization (RON). The trust must be in writing, signed by the settlor, and delivered to the trustee. No recording is required for the trust instrument itself, but deeds transferring real property to the trust must be recorded.
Business Trust Treatment
New Mexico does not have a specific Massachusetts-style business trust statute. Business trusts in New Mexico are governed by common law principles and the NM UTC. The NM UTC applies to express trusts, charitable or noncharitable, including those created for business purposes. New Mexico does not have a separate statutory business trust registration framework. Business trusts operating in New Mexico may be subject to state gross receipts tax and corporate income tax. The NM trust code's broad definition of trust encompasses business trust arrangements. New Mexico's community property laws affect how business trust interests are held by married couples.
Favorable Trust Laws
New Mexico offers moderate trust law advantages. (1) Dynasty Trusts: New Mexico has NOT abolished the rule against perpetuities. NMSA 45-2-901 (Uniform Probate Code) retains the statutory rule against perpetuities, requiring interests to vest or terminate within 21 years after the death of an individual then alive. However, NMSA 45-2-904 provides exceptions for certain interests including property interests held in trust. (2) Asset Protection: New Mexico does not have a self-settled asset protection trust statute; the spendthrift provision does not protect the settlor's interest from the settlor's own creditors. (3) Tax Treatment: New Mexico imposes state income tax on trust income for resident trusts (administered in NM or with at least one NM resident trustee). No state estate or inheritance tax. (4) Decanting: New Mexico adopted the Uniform Trust Decanting Act in 2017 (NMSA 46-12-101 through 46-12-129), allowing trustees to modify trust terms by appointing trust property to a new trust. (5) Community Property: New Mexico is a community property state, which can provide tax advantages for married couples through community property trusts.
Unique Factors
New Mexico's unique trust law factors include: its status as a community property state, which can provide significant tax basis advantages for married couples using community property trusts; the Uniform Trust Decanting Act (2017), which provides flexible trust modification tools; the certification of trust's inclusion of a ninth requirement (agent delegation not prohibited) not found in the model UTC; and the retention of the rule against perpetuities under the Uniform Probate Code (NMSA 45-2-901), which limits dynasty trust planning. New Mexico's trust code is well-integrated with its Uniform Probate Code, providing a cohesive estate planning framework. The state's low cost of living and lack of estate/inheritance tax make it attractive for moderate estate planning, though it lacks the advanced asset protection and dynasty trust features of states like New Hampshire or Delaware.
Sources & verification
- NMSA § 46A-10-1013 (Certification of trust) (authoritative mirror)