Defining your Will and Testament for Property in Mexico
WILL AND TESTAMENTS
“FIDEICOMISO” OF ADMINISTRATION (SIMILAR TO LIVING TRUST)
When one departs this world, one normally leaves goods that were his or hers. These goods (movable or immovable) must be transmitted to someone or they will be confiscated by the Government. In Mexico, the unclaimed goods are then distributed to needed people.
Hand written private Will and Testament:
One can draft his/her own Will and Testament but it must be in accordance to every stipulation in the Civil Code of the State where it is drafted. This type of Will and Testament is not recommended since it can be easily contested in Court.
A Will and Testament done in front of a “Notario Publico”:
The procedure must be the following: One presents to the “Notario Publico” his wishes as to whom will inherit his goods either verbally or in writing. The “Notario Publico” will then draw the final document and he must ask directly in person, without any other person in the room, if that is his wishes, if the answer is affirmative the “Notario Publico” then asks the person to sign in the volume of his study and then he signs. In the event that this procedure is not followed the Will and Testament is not valid and can be contested in Court.
To be able to acquire the goods mentioned in a Will and Testament one must go through a “probate” legal process in front of the Tribunal, once the document is declared valid by the Court or Tribunal the file goes to a “Notario Publico” who will attest the verdict.
One commits a crime when moves, sells or dispose of any goods of one who died before a Judge renders a decision on the validity of a Will and Testament.
“Fideicomiso” of Administration (similar to a living trust):
The advantage of electing this type of vehicle is that there is no need for a “probate” process thus saving the heirs lots of money. Once the document is drafted indicating the exact wishes a “Notario Publico” will certify it and it becomes a public document. It is recommended to elect for this form in the event that part of the goods are in the form of money to be used for children so as to guarantee that the money is not used in the wrong way and / or in the case that personal services to a person in need due to physical disability are to be continued after one’s death.
Important rules:
When one does not read or write Spanish one must have the documents translated in his mother's tongue by a certified translator. The final document must be in both languages.
When one does not know the Spanish language one must be very carefully during the establishment of a TESTAMENTO or a “Fideicomiso de Administracion” since the Spanish version will be considered by the person applying the meaning of the words at time of controversy or judgment thus it is recommended that one uses the services of a legal adviser who has full knowledge of no only Spanish but also of the foreign language.
During the month of September “Notario Publicos” give a 50% discount on Wills and Testaments.
Any questions on this or any other legal subject please feel free to call on us
More info can be obtained by contacting me at can-am-mex-law-firm@hotmail.com
Lic. J.E. Beaulne, LL.B.