Important Facts About Wills and Your Mexican Estate
September is will month in Mexico, and the Mexican government offers incentives to property owners to encourage them to prepare a will. Foreigners with investments in Mexico may have a will prepared in Canada or the US, however getting a foreign instrument recognized in Mexico can entail a lengthy and expensive process.
- The foreign will must be translated into Spanish by an official court-approved translator.
- It must be “Apostilled” in the country where it was prepared.
- Canadian wills are not required to be apostilled but will need to be translated into Spanish by a court-approved translator and submitted to the Mexican consulate in Canada and then presented to a Notario in Mexico.
- If a foreign will goes to probate before the Mexican courts, it may take years to process and complete the transfer of the title. Meanwhile, the probated property can not be sold, and it can be challenging to manage and keep up with financial expenses.
This process causes your family undue stress and expense, which can be avoided by having a Will drawn up in Mexico.
Why you need a will to protect your spouse.
- Since Mexico does not have survivor rights, the surviving spouse might not automatically inherit the property.
- If the couple owned property 50/50, without a will, the government might decide how to disperse the deceased’s share of the property.
- The court may divide the deceased share equally amongst the surviving spouse and the children, and may even include ex-spouses.
- The will should be specific, stating that the surviving spouse inherits the other 50% of the property, and if the parent also passes away, the children will then become the beneficiaries.
- Even if the property is held by fideicomiso, It is important to have a Mexican will to protect your heirs and avoid any unnecessary red tape. The fideicomiso names the beneficiaries but does not protect other assets of the estate.
Note that if the will and the fideicomiso name different beneficiaries, the fideicomiso will prevail.
Considerations for your Mexican will
- A Mexican will must be in Spanish, use a trusted attorney to prepare the will.
- Cross-reference your Canadian or American will with the Mexican will.
- If it is your wish to have your surviving spouse or designated benefactor to be the sole beneficiary of the property, be sure to state that in the will.
- Include a simultaneous death clause.
- Ensure individuals in a common-law union are recognized as the spouse.
- Appoint a guardian for underage children.
- Include a “No Contest Clause.”
- A residuary clause, if you have a foreign property and only a Mexican will.
- It is preferable to choose an executor/executrix who lives in Mexico
- If the testator did not designate an Executor, the heirs would elect an Executor by majority vote.
- The expenses made by the Executor in fulfilling his position, including the attorney and attorney fees he has occupied, will be paid from the estate.
- Consider a Medical Directive.
- The will must be signed in the presence of the Notary.
Steps of Probating a Will made in Mexico.
- The first step is Radicación, where the Notary reads the will to the beneficiaries in the presence of the Executor. The Executor of the will is acknowledged and must accept the position as an administrator. Beneficiaries will accept or refuse the inheritance of the estate.
- The second step is publication or edictos. The Notary will submit an official announcement to two newspapers that are widely circulated in the State where the will is read, as well as the official publication of that State to inform the public of the will and provide them a chance to claim an interest against the estate.
- If no claims to the estate are made within 40 working days, the process will continue to the final step, referred to as the escritura de adjudicación where the property is officially transferred to the beneficiary.
Inherited property is not subject to any capital gains in Mexico, although it may be subject to a transfer tax.