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Why Expats Should Have a Mexican Will  

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Making a Will is probably not top-of-mind for most of you, but there are many reasons why expats should have a Mexican Will. As you move through life your circumstances change, as do the potential risks and complications when you pass away.

When should you make a new Will?

You should consider making a new Will when:

  • You have an unmarried partner who should inherit from your estate.
  • When you have a child so a guardian can be appointed.
  • When you buy a property or receive a large monetary windfall.
  • If you get divorced, so your previous Will will not be automatically invalidated.
  • When you want to make provisions for step-children, foster children or dependents. Or If your spouse passes away, and your previous Will left the estate to them.

What happens if you die without a Will?

If you die without a Will, your estate will be divided up in line with the rules of intestacy. This means you will have little control over who receives your estate. Why parents need a Will might be the last thing on your mind as you adapt to your busy new life as a parent, but making a Will is very important when you have children. By writing a Will, you can appoint guardians for your children if they are under 18-years-old when you die. You can find out more in our guide to Will writing for parents (you can contact us by using the email address at the end of this article for this guide as well as other guides to writing a Will). Make sure your Will is official. A Will that is not properly signed and witnessed is invalid.

Make provisions for your funeral arrangements

Some people may have particular wishes as to their funeral and making a Will provides a good opportunity to record these.

U.S. or Mexican Will?

Most importantly, there is NO inheritance tax in Mexico, even if your assets are in the United States, as long as the Will is executed in Mexico. You can have both a U.S. and Mexican Will, or to make things simpler, you can have just one Will that will be valid in both countries in order to avoid conflicts between heirs, assets or rules of laws. We recommend you have only one Will that will cover both countries, or even more if you happen to have assets in other countries. Make sure that the attorney that drafts your Will is knowledgeable in international law and covers the requirements for all countries and States involved.

Top reasons to make a Will

Here are some of the top reasons for making a Will, and how dying without one could affect your loved ones.

  1. Make a Will to name your children’s guardian. When writing a Will, you do not just decide how your estate is divided up. You also have a say as to who should look after your dependents. If they are under 18, you can also appoint their legal guardians. If you do not, the decision could be left to the family courts, who may choose a person who would not agree with you. You may have named friends or family members to be your children’s godparents, but this is not legally-binding.
  2. Ensure your children are provided for financially. As well as saying who will raise your children, you can make plans to provide for their future financially. This might include putting aside money for their education, making sure they receive a set amount each year for clothing or hobbies, or establishing a nest egg to buy a home.  You may wish to consider setting up a trust to provide for your children, as this gives you an element of control over when your children receive the money, and what it gets used for. There are two ways to set up a trust: you can either establish it while you are still alive, or leave instructions for it to be established when you pass away.
  3. You can provide for your dependents, including step-children. Your step-children may be a big part of your life, or may even be your only children, but the law states that only spouses or blood relatives can automatically inherit if there is no Will. If you want to provide for your step-children, you will need to write a Will that includes them. The same goes for foster children, or any other dependents who may rely on you for support.
  4. Protect your partner if you are unmarried. Unmarried partners are not entitled to anything from your estate unless specifically stated in your Will – no matter how long you have been together. Writing a Will ensures your partner will receive his/her fair share of your estate.
  5. Safeguard your family home If the family home is in your name. Your unmarried partner and step-children are not automatically in line to inherit it if you die without a Will – meaning they may lose their home. You can leave them a share of the property in your Will, or a right to reside in the property.
  6. Heading off family disputes by dividing up an estate can sadly sometimes lead to squabbles and arguments among your survivors if there is no Will or your wishes are not made clear. Contested Wills can be damaging to relationships among your family, and can also be expensive if decisions about your estate are legally contested.  A well-prepared Will can help avoid these arguments, and avoid making your passing even more stressful for your survivors.
  7. Avoid paying more inheritance tax than you need to. In the United States, the amount of inheritance tax that will be charged from your estate depends on how much you have, and also who you leave it to. Anything left to your spouse or civil partner will be automatically exempt from inheritance tax. Leaving property to your children and grandchildren is also likely to generate a lower inheritance tax bill than leaving it to others.  However, in Mexico, there is NO inheritance tax regardless of whom inherits your estate or part of it.
  8. Create a legal Will if you are recently married. When you marry, your existing Will automatically become obsolete and your spouse will have the right of 50 percent of your estate unless you stipulate otherwise. According to the rules of intestacy, this means your estate could end up split between your new spouse and children from a previous marriage, potentially causing arguments. Getting divorced does not override your Will, meaning your ex-partner may still be in line to inherit from your estate under the old Will. As such, it makes sense to regularly review your Will so it still reflects your situation, particularly after a marriage or separation.
  9. Decide who you would like to settle your affairs. Within your Will, you can name an executor, or multiple executors, who will be in charge of carrying out your final wishes. Choosing your executor in advance allows you to select the best person for the task. It also gives the executor prior warning so they can prepare themselves.
  10. If you have pets, stipulate who you want to look after them after you pass away. Also, you may want to put some money aside to feed them and look after their health.

You may have additional questions about making a Mexican Will. If so, please feel free to contact me at dianac.lawyer@gmail.com.

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Diana Cuevas
If you have questions about legal matters in Mexico, Diana Cuevas has answers. Diana’s blog focuses on a wide range of legal issues from immigration to civil law. Diana lives in Querétaro, has three master’s degrees in international law and has been a practicing attorney for over a decade. She also is licensed to practice law in the U.S. and Mexico. Email: dianac.lawyer@gmail.com.

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