PREPARING A WILL IN MEXICO
A recent tragic incident has emphasized the importance of having a Will. One of our clients died suddenly of a heart attack and had no Will made in Mexico. His Mexican family claimed that he died intestate, therefore his children born here and his second wife were entitled to his estate. His Canadian family, relying on a previous, older Will, claimed to be his only legal heirs. This dispute will definitely cost thousands of dollars and last several years before it is resolved. It could have been avoided.
Assuming you have a Will prepared in Canada or the U.S., should you have a Will prepared in Mexico if you have property here? The short answer is an unqualified “Yes”. Here’s why.
Wills prepared outside of Mexico are valid in Mexico. It’s having them recognized that is a lengthy, complicated and expensive process. Getting a US or Canadian Will recognized in Mexico requires that it be translated into Spanish by an official court approved translator. It also requires that it be “Apostiled” in the country where it was prepared. This process can take several months and can cost several hundred dollars to complete. If certain issues arise, the Will may be required to be probated before the Mexican courts which adds years to the process of transfer of title. During this time property in Mexico may not be disposed of and management may be difficult.
Most foreigners who own property will do so through a Trust. If that is the case, beneficiaries are named in the Trust Deed, thereby eliminating the need of preparing a Will in Mexico for that property. However, it should be noted that only immediate family members (wife, children) can be beneficiaries of trust property. Furthermore, bank accounts and other property such as vehicles and jewelry are not included in the Trust Deed and therefore require a Will or the probate process to be transferred.
Having a Will prepared in Mexico is relatively easy and inexpensive and it is recommended to avoid delays and complications in the transfer of property. Here are some key points to remember:
- Make sure to cross-reference other Wills that you do not want revoked. Explicitly refer to them and declare that they remain valid. The reason is that Mexican Wills implicitly revoke previous Wills unless otherwise indicated;
- Mexican Wills must be in Spanish so unless your knowledge of that language is above average (considering the complexity of terms) make sure you have a trusted person help you understand and translate it for you before you sign. We recommend to our clients to have a lawyer draw up the terms of your Will in English and then translate it for the Notary;
- Although there are no estate taxes in Mexico, this may not be the case in Canada or the U.S. Consider using Trusts created for beneficiaries to avoid triggering taxation in your country of residence;
- Appoint at least one local Executor who is familiar with the laws and customs of Mexico. Preferably a professional with integrity. This will help expedite the transfer of property.
- Although Mexican Law allows for different types of Wills, prefer one prepared by a Notary Public as it is more readily recognized and requires fewer steps to have it officiated.
This article was published in the magazine Mexi-Go!