September is Will month in Mexico. It’s a reminder to prepare for the inevitable and to leave in order affairs so that family members inherit property and not complications. Notaries offer a considerable discount during this month, sometimes up to 50%, of the regular fees to prepare a Will.
This is referred to as an abintestate 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.
If there’s no Will and there is noab intestatehearing, “abandoned” property of the deceased is automatically transferred to the State.
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.
The delay to claim an inheritance will prescribe within 10 years that an Estate opens.
Anyone that can give a valid consent (adults with the capacity of reasoning) can accept or refuse an inheritance.
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.
No. A married woman can accept or reject an Estate without her husband’s approval.
Yes. One person can accept their share of the inheritance and another can refuse.
The right of accepting or refusing the Estate will then be transferred to their heirs.
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.
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.
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.
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);
Yes. In fact, it is recommended to appoint an odd number of Albaceasif the Estate has considerable property and value or if it is anticipated that there will be conflicts between the heirs.
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).
If there is no majority agreement, the Albaceas will be appointed by a judge who will select among those recommended by the Heirs.
Antestator 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.
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.
The duties of the of the Albaceas are:
I. File the Will in a Court of law to have it recognized and his appointment confirmed.
II. Prepare an inventory of all the property of the Estate.
III. Administer and protect the property of the Estate.
IV. Pay the expenses and debts of the deceased including funeral expenses.
V. Defend or commence any legal action to receive or protect property of the Estate as well as defend the validity of the Will.
VI. Transfer property to specific heirs.
VII. Distribute and partition the remaining property of the Estate between the heirs.
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.
The heirs can unanimously dispense the Albaceas from providing any guarantees.
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.
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.
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.
Once the inventory is concluded and the accounts of the Estate are paid, the Albaceas must then divide the Estate to the heirs.
If the Estate includes property that must be notarized in order to be transferred, such as real estate, does the partition need to be notarized. Otherwise it can be done by a private deed.
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.
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