Probate and Successions Under Baja Law

August 11, 2010 by
Categories: Mexico

Mexico probate sucessionsBy Eduardo Rosales
Attorney at Law
Baja Times

Have you ever thought about how your estate in Mexico will be transferred to your successors?

What will happen to our estate upon death?

There are two types of successions under Mexican Law:

The intestate succession (No will) and the testate succession, just like in the U.S. legal system.

The second, (testate succession) means that there is a will and designated successors.

In a bank trust, a person can name beneficiaries in case of death and avoid probate. It is never too late to name beneficiaries and is better than going through probate. On the other hand, if someone holds an “escritura”, has the right to leave a will designating heirs, executor, etc. This will, can be general or by bequeaths.

In case decedent did not leave a will, this is what the Baja California Civil code provides:

The order of how the successors will inherit is as follows: The ones with better right to inherit are the closest to the decedent, and they exclude the rest of the relatives.

In first place and in equal circumstances are: The surviving spouse and Children. Secondly, if there is no spouse and children or grand children, the parents are by law the successors; then, grandparents will succeed. If there are no relatives (spouse, children, ascendants or descendents, etc.), the law provides that the next relatives are the ones referred to as collateral relatives (brothers), then nephews and nieces, uncles and aunts, etc. A person can leave a will even disregarding this order.

One thing to consider, however, is whether decedent was married under separate property or community property. This may change the complete strategy to follow.

There are not many regulations that explain the rules of the foreigners successions, but the law does not distinguish, thus, same rules apply.

Therefore, when purchasing property and even after the property acquisition, to avoid further complex legal situations, one of the things everyone (Mexican and Non-Mexicans) within this territory and respecting real property and/or personal property in Mexico must do is their estate planning: Will or trust.

Even in private purchase agreements, we can be creative and include some provisions that may avoid problems with the parties or their successors in case one of the parties (buyer or seller) dies.

Before someone purchases property, make sure to analyze your estate planning and consult your attorney. Not all acquisitions, titles, properties situations are the same, and it needs to be analyzed case by case in order to secure and protect your estate in Baja California.

For a specific case consultation, you can contact our office and we can provide you with the accurate and appropriate estate planning.

Article written by Eduardo Rosales, Real Estate Attorney at Law with more than 12 years of experience in Baja Law, president of E4 Title & Legal Services. (661) 100 25 72 or email: rosalesandassociates@hotmail.com, web site www.e4mx.com.