Mexican Wills and Probate

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If you own your property directly, you will need to make a will and your heirs will need to probate it upon your death. If you have a trust, make sure you have listed substitute beneficiaries, so that your heirs will be singing your praises upon your demise.

Below is some general information about wills and probating. Consult a Mexican lawyer of good reputation, for more specific details.

1. One will per person. It sounds obvious but it's amazing how your brain doesn't work logically when dealing with another language! Even if your property is in two names (say yourself and your spouse), you need one will for each of you.


2. If you die without a will, the property will go to your spouse and your children. If you have neither of those, it goes to your parents. If you're thinking, "Great! that's who I wanted to leave it to anyway, so why make a will?" think again. It really delays probating without a will. Nothing is more difficult for your grieving heirs, then to have to deal with difficult legalities in a foreign country.


3. Mexico will accept an American will, after it's been probated and with appropriate translations. The problem with this lies in the fact that some probates in the U.S. can take years. The Mexican property then lies unattended and unused, decreasing its value. Then the weary heirs get to probate all over again. Whoopee!


4. Probate is done by a judge who examines the will, decides the validity of the heirs, rules in favor of the heirs, and then passes the findings on to a notary, so that he/she may draw up a new title. All normal fees in title transfer are incurred except for Capital Gains Tax. A very straight-forward case, can be done by a notary, without a judge. The judge is free, however, and a notary will charge you for probating. A good probate can occur in 2-3 months.


5. There are several different types of Mexican wills to choose from. Some are "public" made verbally in front of a notary, with three witnesses and two interpreters. This "open" form is the preferred form for probate judges. This type of will is recorded at the Clerk and Recorder's Office. A Closed Will, is one written by you, signed on every page and sealed in an envelope. You need to provide three witnesses testifying that you are you. The notary types dates and verification on the envelope and seals it with wax. You can keep it then or take it to the Clerk and Recorder's Office for recording. Please don't think that documents don't get lost. They do all the time, so make backup copies and give them to your heirs. A written will doesn't have to be in Spanish. Be sure to include legal descriptions of your property, not just a street address.


6. You might consider transferring title of your Mexican property to your heirs, prior to dying. They don't have to probate at all then, or if you have a decline and can't make any decisions, they can make legal decisions about the property. They can give you a power of attorney to make decisions while you are still alive and kicking.