Last Will And Testament of a Foreigner in Mexico
It is important to understand it may be difficult for your loved ones to deal with your estate if you do not have a Mexican Will. Residence of Mexico, primarily property owners, should consult a Mexican attorney regarding their estate planning.
Is a Canadian or American Will valid in Mexico if it includes my Mexican real estate and valuables?
Although your foreign Will is valid in Mexico, the time and expense it takes to have it verified and processed will cause your family undue stress and expense.
The problem is getting these documents recognized, American documents need to be apostilled, and notarized in the U.S. and translated into Spanish by a court approved translator in Mexico. Canadian Wills do not need to be apostilled, but will need to be translated by a court approved translator and submitted to the Mexican consulate in Canada and then presented to a Notario in Mexico.
In a case where there is no Will, the property may not always be automatically left to the surviving spouse. Mexico does not have survivor rights, meaning the surviving spouse does not automatically inherit the property even if the couple owned it 50/50, without a Will, the government may decide the fate of the deceased share of the property.
If the couple has children, the court may divide the deceased spouse’s share equally amongst the surviving spouse and the children.
This may be a difficult situation in the future as the surviving spouse will require the children’s permission to sell or mortgage the property. The Will should read specifically that the surviving spouse inherits the other 50% of the property, in the event that parent also passes away the children will then become the beneficiaries.
Does the Fideicomiso Protect my Heirs?
The idea of a Fideicomiso trust is to protect your heirs by listing them in the contract as your Substitute Beneficiary, yet there have been instances where the bank trustee failed to issue a transfer of property to the benefactors, the heirs had to go to court to have the bank release the certificate.
Even if your property is held in trust, It is important to have a Mexican Will, to protect your heirs. And avoid any unnecessary red tape.
Last Will and Testament Considerations:
- Your 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.
- State specifically the surviving spouse or designated benefactor will be the sole beneficiary of the property if that is your wish.
- Include a simultaneous death clause.
- Include a “No Contest Clause.”
- Include a residuary clause, if you have foreign property and only a Mexican Will.
- Consider your executor/executrix, do they live in Mexico? understand Mexican estate laws, or speak Spanish? Preferably your executor is a professional with integrity; This will help expedite the transfer of property.
- Consider a Medical Directive in your estate planning.
- List a power of attorney should a medical situation arise.