You should understand that death has legal consequences. If you decide to stay in Mexico, it will be useful for you to know what to do if someone close to you dies in this country. Sometimes death is sudden, but more often it is expected, and therefore there is usually time to prepare for this sad event.
It is advisable to have a will for everyone who permanently resides in Mexico, and especially for those who own real estate. You have the opportunity to draw up a will in your home country, have it apostilled, and have it translated by an official translator in Mexico. Then the will will be valid in Mexico. As you know, there is no right to have two wills; each new one «overrides» action of the previous one. Therefore, if a will contains assets in different countries, it makes sense to consult with lawyers in which country to register it. But if the center of your interests is located in Mexico, it is advisable to draw up a will with a Mexican notary. In certain circumstances regarding the transfer of ownership, a will not drawn up in Mexico may need to be approved by the courts, which can drag out the process for many months.
Typically, Mexican notaries draw up a will in Spanish. But the will can also be in two languages, in particular, in Spanish and your native language. If you do not speak Spanish, the law requires the presence of an official (certified) translator and the approval of the text. Each page of the will is initialed by the testator and executed by a notary. The will is then placed in an envelope, sealed, signed by the testator, witnesses and the notary, the notary also puts his stamp to confirm the authenticity.
A will can be drawn up by any notary. It is believed that in Mexico City about 40% of notarial acts — These are just wills. The cost of drawing up a will with different notaries in different states can be very different, but on average it is 4-7 thousand pesos. Notaries often organize «promotions» (usually in September), offering their probate services at a discount or even no cost to seniors over 65 years of age. To make a will, you must have valid identification and, if you are a non-resident, prove that you are in Mexico legally. In addition, it is possible to draw up a will in the legal departments of municipalities, and it costs much less than with notaries.
In Mexico, foreigners can only own coastal real estate through a trust. In this case, the beneficiaries are named in the trust deed, making it unnecessary to prepare a will to inherit such property. However, only immediate family members (spouse, children) are usually designated as beneficiaries of trust property, otherwise a will is required. A will is also needed if, in addition to trust property, you have bank accounts and other property, such as vehicles and jewelry, the transfer of which requires a will.
If ownership of property occurs directly and not through a trust (in other words, the property is located outside the so-called “restricted zone”), in the act of acquisition or registration of property intended for housing, the owner determines who will be the heirs of the property.
There is also a will in case of loss of legal capacity by a person who is still alive — this is called an advance directive.
If there is a will, upon death the property will be distributed as specified in the will. The heirs turn to a notary or have the right to request a will through the court. The envelope containing the will is then opened and the executor named in the will is named. If necessary, an inventory and assessment of property is carried out. Next, the property is divided, if applicable, and transferred to the heirs.
If a non-resident who owns property in Mexico dies without a will, the law provides that his property will be divided proportionately (50/50) between his legal (but not common-law) spouse and their children. If there are none, parents and relatives up to the fourth degree of kinship can become heirs. At this stage, all papers (certificates) confirming family ties are required. Of course, with an apostille and translation into Spanish. The inheritance trial begins. The heirs are called, then the announcement of the heirs is made. An executor is appointed. An inventory and assessment of property is carried out. A draft division of property is drawn up, and in addition an agreement and a resolution on it, then the property is transferred to the heirs.
Property transferred by inheritance after death is not subject to capital gains tax (income tax) in Mexico, but may be subject to transfer tax if it is real estate.
After death, a death certificate is required, which can be done at the civil registry office (Registro Civil), presenting a death document prepared by a doctor or medical institution, and identification documents of the applicant and the deceased. They will issue a death certificate. The original should be kept and several more certified copies should be requested; they will be needed for contacting various authorities, for funeral or cremation, for organizing the transportation of a body or an urn with ashes, etc.
The spouse of the deceased, if he is a non-resident and a resident of Mexico, is required to notify the migration service of a change in his marital status within 90 days from the date of death of the other spouse. You should contact the National Institute of Migration, presenting your death certificate. An important point: a temporary resident card obtained on the basis of marriage to the deceased will not be canceled and will continue to be valid. However, the time frame before obtaining a permanent resident card (4 years instead of two if married to a Mexican citizen) and before applying for citizenship (5 years instead of two) will change.
If the deceased had tax obligations to the SAT, the SAT must also be notified, otherwise taxes (and penalties for non-payment) will continue to accrue. The consulate of the country of his nationality must also be notified of the death of a foreigner. Consulates of some countries must issue a document regarding the death of a citizen abroad. Typically, this document is required for the heirs to assume their rights in the country of citizenship of the deceased.
For all of these applications, you will need the original plus a certified copy of the death certificate.
A word of caution. A natural death at home must be recorded by any doctor, who must be called immediately. If death is imminent, have a doctor examine the person before death and issue a report. Do not call an ambulance or the police, there is no suspicion of a violent death. If you call an ambulance after the fact of death, they will call the police. If the police arrive, they have the opportunity to regard the call as a suspicion of a violent death, even if there is no reason for such suspicion. In this case, they have the opportunity to seal the house. The body may not be released for several days or weeks; the premises will also be unavailable for habitation during this entire time.