Mexico inheritance laws: what happens to a house

How does inheritance work in Mexico, with a will and without one?

There are two routes: an estate passes by the will of the testator or by provision of the law; the first is called testamentary, the second legitimate, which is how the federal civil code puts it. Where there is no valid will, or the will does not cover everything, the legal route takes over for whatever is left.

The federal code lists the cases in which the legal route opens: when there is no will, or the one granted is void or lost its validity, when the testator did not dispose of all of the property, when a condition placed on an heir is not met, and when an heir dies first, renounces or cannot inherit and no substitute was named. On that route the code names who inherits: descendants, spouses, ascendants, collateral relatives up to the fourth degree and the cohabiting partner, in an order in which the closer relatives exclude the more distant, and, failing all of them, public welfare.

The table sets the two routes side by side as the federal code describes them. The articles are federal; each state code has its own numbering and its own details, and those details are where two estates that look alike can end differently.

What is a will in Mexico, and who drafts it?

A will in Mexico is, in the federal code's words, a very personal, revocable and free act by which a capable person disposes of their property and rights for after their death. The ordinary form most people mean by the word is the open public will, which is granted before a notary.

The code describes the act itself. The testator states their wishes to the notary, and the notary will draft the clauses of the will in writing, strictly following the testator's wishes, and will read them aloud so that the testator can say whether they agree; if they do, it is signed and dated to the hour. The code also knows a closed public will and other forms, but the open will before a notary is the one that leaves a record in the place an heir will later look.

A notary in Mexico is not the same office as a notary public in the United States. As the code describes it, the Mexican notary writes the will, reads it, signs it with the testator and keeps it; and, as the last section shows, in some states the same office can carry a succession forward. That is why the question of what a will should say, and under which state's code, belongs in that office rather than in a guide.

How do you find out whether there is a will in Mexico?

Through the Registro Nacional de Avisos de Testamento, the national registry of will notices, and the search is requested by the judge or the notary who opens the succession, not by the heirs at a public counter. Each state's law sets the steps; Nuevo León's, for example, requires the judge or notary to obtain the report of the existence or non-existence of any testamentary disposition through the state's notarial archive and public registry, which request the search from the national registry over the internet.

The registry works because each will leaves a notice at the moment it is made. In the same state, a notary before whom a will is granted must send a notice within the five business days following, with the testator's full name, nationality, date and place of birth, CURP if given, and the place, date and hour of the will. The registry holds the notice, not the will: it says that a will exists and before which notary it was made, and the will itself is in that notary's protocol.

So how to find a will in Mexico is, in practice, a question of who carries the request. For an heir who lives abroad, the useful things to have at hand are the ones the notice records: the full name exactly as the person used it in Mexico, nationality, date and place of birth, and the CURP if they had one.

What happens to a house held in a fideicomiso?

The house is not in the owner's name: in the restricted zone near the coasts and borders, a foreign owner usually holds it through a bank trust, in which credit institutions acquire, as trustees, rights over real estate located within the restricted zone, with the foreign owner as beneficiary. What passes at death is that beneficiary's position, and the trust can say in advance who takes it.

The commercial-credit law allows it: the settlor may designate several beneficiaries to receive the benefit of the trust simultaneously or successively. The regulation of the foreign-investment law expects it to be written down: the request for the trust permit records the name and nationality of the beneficiary and of the beneficiaries in second place and the substitute beneficiaries, if any, and the trustee bank reports each year, no later than April, on designations of substitute beneficiaries and assignments of rights.

Two practical consequences follow. The trust deed and the bank are the first places to look when the owner of a house in a fideicomiso dies, because the deed may already answer who comes next. And the trust has its own term, a maximum of fifty years, which may be extended at the request of the interested party, which an heir inherits along with the house. How a fideicomiso shapes the everyday running of a house is set out on the luxury property management page; what the trust deed of a particular house provides when no substitute is named is a reading for the notary and the bank.

Who keeps the house running while the estate is settled?

In the law, the albacea: among the executor's obligations the federal code lists securing the property of the estate and the administration of the property with an accounting of it. In practice, the house still needs its electricity, water, property tax, condominium fees, insurance and visits from the first week, long before anyone has been appointed.

The code also sets an order that protects the house in that time. Before the inventory is made, the albacea will not allow anything to be removed, and the inventory itself has a deadline set by the national code of civil and family procedure. The albacea need not do the physical work in person: the code allows them to act through agents who act under their orders, answering for their acts.

That is the narrow place in which an administration office fits. Someone has to keep the accounts paid, the house closed, the systems running and a dated record of its condition, and has to answer to whoever the law or the will puts in charge. For a house whose heirs live in another country, that record is often the only way they see what they are inheriting.

For an owner who is still thinking about the house rather than about an estate, the bills that keep running on it are explained in the guide to property tax in Mexico, and the papers that change hands after a purchase in the guide to buying a house in Mexico as an American.

What does claiming property in Mexico involve, and where are the rules published?

Claiming property in Mexico as an heir means going through a succession, before a judge or, where the state allows it and there is no dispute, before a notary, until the property is adjudicated and the new title is recorded. The rules are published in each state's civil code and code of procedure, and the federal texts quoted here are on the website of the Chamber of Deputies.

Notarial succession is real but not universal. Nuevo León's notarial law, for instance, provides for the case in which a succession is processed before a notary public, and requires the same search of the will registry; other states have their own conditions. That is why no general answer exists to the question of how long a succession takes, or what it costs, and this guide does not give one.

The federal texts are a reliable way to understand the vocabulary — testamentary and legitimate succession, heir and legatee, albacea, inventory and adjudication — before sitting down with a notary. The decision about a particular house, a particular will and a particular state belongs to a Mexican notary in the state where the house is.