Updating your Will in Mexico – by Alvaro Colindres
Recently we updated our Wills in the United States and thought this would be a good time to share my thoughts and experiences and how our USA Wills affects our assets in Mexico. Although we have Wills that cover our assets in the United States, our Wills do not cover our Mexican assets, for a probate court in the United States does not have jurisdiction in Mexico, meaning that you would have to go through probate again but in Mexico and having a Mexican Will makes it less complicated.
From what I understand, there are two ways to designate your Mexican assets to heirs:
1.- The first would be to form a bank trust. If you’re a foreigner and own property in Baja California Sur, most likely you already hold title in a bank trust known as a Fideicomiso, where the owners or “main beneficiaries” have the same rights as an owner would have and may designate substitute beneficiaries in case of demise. In our case, we have designated each other as mutual main beneficiaries 50/50 so when one passes, the other inherits the other’s 50%. When we are both deceased then our substitute beneficiary will move into number one position and inherit our estate. Keep in mind that this type of trust is only for Real Estate, if you have other assets, having a Mexican Will is recommendable.
I like to think of the Fideicomiso similar to a Living Trust in the United States, for it avoids probate and there are tax advantages. If you currently have a Fideicomiso, then most likely you have designated your substitute beneficiaries when you acquired the property. If you’re not sure, now would be a good time to review your current trust to see how it’s worded and verify your beneficiaries. What if you have changed your mind regarding substitute beneficiaries? Then you can file a declaration with a Mexican notary and notify the Trustee bank.
2.- The second way to designate your Mexican assets is with a Will or Testamento drafted and certified by a local notary public and registered at the public registry. In our case we have Mexican Wills that cover our personal belongings such as bank accounts, contents of house, vehicles, etc. and our Fidiecomiso covers real estate assets. I have seen cases where home owners updated the heirs in their Mexican Wills, but did not update their Fideicomiso. As far as the Trustee bank is concerned, the Fideicomiso supersedes the Will, even if you’re married. Therefore, it’s important when you update your Mexican Will that you also update your Fideicomiso so both documents correspond.
Once the main beneficiaries are deceased, the substitute beneficiary presents original death certificates, the Trustee bank will initiate the process of issuing beneficial rights to heirs, and like a Living Trust in the United States, the Trust avoids probate. Now, keep in mind this information is not a substitute for legal advice. If you have questions regarding your Fideicomiso and how it’s structured, a good place to start is with your Coldwell Banker Riveras real estate advisor as he/she will be able to review your Fideicomiso and refer you to a Mexican Notary, or attorney, who specializes in estate planning.
For more information about Todos Santos Lifestyle, Real Estate & news, send Alvaro an email to firstname.lastname@example.org visit www.cbriveras.com or give him a call to our Coldwell Banker Riveras Todos Santos Office 52.612.145.0118