In Mexico, there's no legal mandate for having a will, leading Canadians to hesitate about making one. However, similar to the situation up north, the primary rationale for drafting a will is to safeguard a surviving spouse or heir.
The legal framework governing property transfer in Mexico differs from that in Canada.
While most states adhere to succession laws based on the Civil Code of the Federal District (Mexico City), each state may have their own succession laws. Your Mexican lawyer will be knowledgeable about which law to adhere to when drafting your Will.
Properties held in Fideicomiso (Mexican Trust)
Before continue reading, please be aware that Fideicomisos have their own particularities. When a Fideicomiso is established, beneficiaries and substitute beneficiaries are (or should be) designated within the trust contract and no Will is required, nor is probate require for disposition of the property in Mexico.
It is always a good idea to bring a trusted Mexican lawyer during the creation of a Fideicomiso to make sure beneficiaries are recorded as you are requesting.
Properties out of the Restricted Zone
If the property is located inland, beyond the "restricted zone," it's probable that the property is held in a fee simple deed.
In Mexico, there isn't a provision for "Right of Survivorship," which would enable automatic transfer of the property to the surviving spouse. If the intention is for the property to pass entirely to the surviving spouse, a Will must be drafted. Without a Will, according to the state's civil code, the surviving spouse may be required to divide the property equally with surviving children. This outcome might not align with the original intentions of the property owner.
Tips for Preparing a Canadian and a Mexican Will
It's advisable to consider engaging a Canadian lawyer to assist in navigating estate laws in Canada. Ensure that your Canadian and your Mexican lawyer work together to provide you with the right legal advice in both countries (you will get the best of both worlds).
If you have a Canadian Will, it's important to note that Mexican Wills may revoke any previous Wills, either expressly or implicitly. In cases where the Mexican Will doesn't reference the Canadian Will, Mexican law may revoke all prior Wills. Therefore, it's crucial to specify revocation or non-revocation in the Will. Coordinate your estate plan to ensure that all Wills harmonize in achieving your goals. A Mexican Will should make reference to any Canadian Will, and vice versa.
Consider adding a “Simultaneous Death Clause” to your Will.
Appoint a guardian for underage children.
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