Wills and Estates in Mexico Q & A
WHAT IS WILL MONTH IN MEXICO?
September is Will month in Mexico. It’s a reminder to prepare for the inevitable and leave your affairs in order, so that family members inherit property and not complications.
MexLaw attorneys can assist you in preparing your Mexican Will and answer any questions you may have about your estate.
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Take advantage of this promotion before October 31, 2019.
WHAT HAPPENS TO PROPERTY WHEN A PERSON DIES WITHOUT A WILL?
This is referred to as an ab intestate Estate. In Mexico, property of the deceased is not automatically and legally transferred to their heirs until there is an Intestate Hearing before the corresponding Civil or Family Court in the jurisdiction where the person died. The purpose of this hearing is to establish who the legitimate heirs of the deceased are. Property is only transferred once a judgment is pronounced naming the heirs.
WHEN IS PROPERTY TRANSFERRED TO THE GOVERNMENT
If there’s no Will and there is no ab intestate hearing, “abandoned” property of the deceased is automatically transferred to the State.
WHEN DOES THE ESTATE “OPEN”?
The Estate or a succession is considered open or created at the time a person dies or when there is a presumption of death in the event of a prolonged absence as declared by a Court of Law.
HOW LONG DO YOU HAVE TO CLAIM AN INHERITANCE?
The delay to claim an inheritance will prescribe within 10 years that an Estate opens.
CAN YOU ACCEPT OR REFUSE AN ESTATE?
Anyone that can give a valid consent (adults with the capacity of reasoning) can accept or refuse an inheritance.
CAN A MINOR ACCEPT AN ESTATE?
Minors or individuals that do not have the capacity of reasoning must accept or reject an inheritance through a tutor or a curator duly appointed by a judicial hearing.
DOES A MARRIED WOMAN NEED HER HUSBAND’S APPROVAL TO ACCEPT AN ESTATE?
No. A married woman can accept or reject an Estate without her husband’s approval.
IF THERE ARE MULTIPLE HEIRS, CAN ONE PERSON ACCEPT AND THE OTHERS REFUSE?
Yes. One person can accept their share of the inheritance and another can refuse.
WHAT HAPPENS IF A PERSON DIES BEFORE ACCEPTING THE ESTATE?
The right of accepting or refusing the Estate will then be transferred to their heirs.
CAN YOU ACCEPT OR REFUSE THE WILL FROM A DISTANCE?
A person that does not reside in the same jurisdiction as the deceased can accept or refuse the Estate by having that decision recognized by a Judge or by a Notary.
WHAT IF ONE OF THE HEIRS DOES NOT EXPRESS THEIR DECISION?
In this case, the other heirs can apply to a judge in order to have them declare whether the heir has accepted or is presumed to have refused the inheritance.
WHAT IS AN ALBACEAS?
An Albaceas is the Mexican equivalent of the Executor of the Estate. This is the person appointed by the Testator to execute their instructions in the Will.
WHO CANNOT BE AN ALBACEAS?
The following persons cannot be Albaceas: an heir to the Estate unless they are the sole heir; magistrates or judges exercising their jurisdiction in the place where the succession opens; individuals who have been previously removed as Albaceas; individuals convicted of crimes against property; individuals known to have a bad reputation or one as a dishonest person (normally this is recognized by a Court of law);
CAN THERE BE MORE THAN ONE ALBACEAS?
Yes. In fact, it is recommended to appoint an odd number of Albaceas if the Estate has considerable property and value or if it is anticipated that there will be conflicts between the heirs.
WHAT HAPPENS IF NO ALBACEAS IS APPOINTED?
In the unlikely event that no Albaceas is appointed or the one appointed refuses to act, the heirs can agree by majority vote to appoint another Albaceas. Minors must vote in favor of their legal representatives (Tutors).
WHAT IF THE HEIRS DO NOT AGREE ON THE ALBACEAS?
If there is no majority agreement, the Albaceas will be appointed by a judge who will select among those recommended by the Heirs.
WHAT TYPES OF ALBACEAS ARE THERE?
A testator can appoint a Universal Albaceas which will administer and distribute all of the inheritance or a Specific Albaceas who will manage and distribute specific property, for example, the shares of a corporation.
IS THE CHARGE OF THE ALBACEAS VOLUNTARY?
A person cannot be obliged to act as an Albaceas. However, once they accept the appointment, they have the obligation to perform it unless they follow the process to resign.
WHAT ARE THE DUTIES OF THE ALBACEAS?
The duties of the of the Albaceas are:
- file the Will in a Court of law to have it recognized and his appointment confirmed
- prepare an inventory of all the property of the Estate
- administer and protect the property of the Estate
- pay the expenses and debts of the deceased including funeral expenses
- defend or commence any legal action to receive or protect property of the Estate as well as defend the validity of the Will
- transfer property to specific heirs
- distribute and partition the remaining property of the Estate between the heirs.
DOES THE ALBACEAS NEED TO PROVIDE ANY GUARANTEES?
To guarantee their administration and execution of the Will, the Albaceas must provide financial guarantees, at their choice, determined as follows: the equivalent of one year’s rent of the real estate or revenues generated on capital equivalent to the year preceding the opening of the estate.
CAN THE HEIRS DISPENSE THE ALBACEAS FROM PROVIDING GUARANTEES?
The heirs can unanimously dispense the Albaceas from providing any guarantees.
CAN THE ALBACEAS SELL ASSETS FROM THE ESTATE TO PAY DEBTS?
One of the first obligations of the Albaceas is to pay all the debts of the Estate including fees related to the management and distribution of the assets of the Estate. They will pay these fees from any money available in bank accounts otherwise they will sell some assets to permit them to pay these expenses.
WHO IS RESPONSIBLE FOR THE INVENTORY OF THE ESTATE?
One of the first tasks of the Albaceas is to take an inventory of the assets comprising the Estate. There is no formality in doing this. However, it is common practice to have the inventory notarized.
WHAT TYPES OF INHERITANCE ARE THERE?
As elsewhere in North America, there are Specific and General Inheritance. The Specific Inheritance identifies property to be bequeathed to one of the heirs. The General Inheritance is all the property distributed equally to all the heirs. A Specific Inheritance can all be made by a Will.
WHEN IS THE PARTITION OF THE ESTATE MADE?
Once the inventory is concluded and the accounts of the Estate are paid, the Albaceas must then divide the Estate to the heirs.
DOES THE PARTITION OF THE ESTATE HAVE TO BE NOTARIZED?
If the Estate includes property that must be notarized in order to be transferred, such as real estate, the partition need to be notarized. Otherwise, it can be done by a private deed.
HOW TO FIND OUT IF A WILL EXISTS?
If you are not sure that a family member had a Will in Mexico, you must apply to the local Court in their residence and the judge will order the National Registry of Wills (Archives of Notaries) and the Public Register to confirm if that person made a Will. If it does exist, then copies can be obtained. If no Will exists, then the legal heirs must file an application in Court to have the ab intestate Estate declared, the heirs recognized and an Albaceas appointed.