Advance directive and planning for important health care decisions are very important. An advance health care directive, also known by some as a living will, personal directive, advance directive, or advance decision is a legal document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity. In Mexico, people should obtain a new advance directive and not rely on having one written elsewhere nor in English. A notario may assist you. If you have one from another country it needs to be translated by a certified translator and notarized. It is usually less expensive to simply make a new advance directive.
Wills are desirable for anyone living in Mexico full-time and especially for those owning property. Usually, it is written in Spanish and prepared by a notario. If you are not bilingual, the law requires a certified translator be present. If Wills are written in dual column format (English and Spanish) by English speaking notario then a translator is not needed. Wills prepared outside of Mexico are valid in Mexico. But to have Mexico recognize a foreign will, it is a lengthy, complicated and expensive process. Obtaining recognition of a US or Canadian will in Mexico requires that it be “Apostilled” or “Legalized” in the country where it was prepared and then translated in Mexico by a certified translator. This process can take several months and may cost a significant amount to complete. If certain issues arise, the Will may be required to be probated before the Mexican courts which adds months or more to the process of transfer of title.
Most foreigners who own property on the coast will do so through a Trust. If that is the case, beneficiaries are named in the Trust Deed, thereby eliminating the need of preparing a Will in Mexico for that property. However, please check if only immediate family members (wife, children) may be beneficiaries of trust property. Furthermore, bank accounts and other property such as vehicles and jewelry may not be included in the Trust Deed and therefore may require a Will or the probate process to be transferred.
A foreigner with property in Mexico who dies will have their property distributed to their legal heirs, depending on whether they die without a Will (ab intestate), with a Mexican Will, or with a foreign Will. If a foreigner with property in Mexico dies without a Will, the law provides that their property be divided proportionately between their legal spouse (and not common-law spouses) and their children. The process is complicated and requires the translation and certification of foreign documents such as marriage certificates, marriage contracts, birth certificates, etc.
Property transferred on death isn’t subject to capital gains in Mexico but, in some cities, it may be subject to transfer duties if it is real estate.
When a death occurs it normally requires a funeral home representative to go with a family representative to REGISTRO CIVIL. The family representative will need ID and the deceased person’s official ID. The funeral home representative will provide the required documents pertaining. In San Miguel de Allende, there is a group called “24 Hour Association” which people may join and their expertise is in dealing with death, documents, cremation, etc.
Do not call an ambulance or the police when a death occurs unless foul play is suspected. Ambulance staff will call police. If police are involved, even if there is no foul play, the body and residence may not be released for weeks. A doctor needs to be contacted immediately. If death is imminent, have a doctor see the person prior to death.
Registro Civil will issue a death certificate. It is very important at that time to ask for additional certified copies of the death certificate, typically, 5 or more copies. Keep the original in a safe place.
To transport the person’s ashes or body those requirements are to be requested for the airline.
Immigration notice of change of status is required if the person was in Mexico as a Temporary or Permanent. When married, this is completed by informing INM of the living spouse’s change in marital status and presenting the death certificate and visa within 90 days of when death occurred. If the person was registered with SAT for tax purposes, SAT also must be notified.
The Canadian government has an excellent web page for when a Canadian dies in Mexico. Please see here. Your representative should bring your passport to a Canadian consular point of service in Mexico to be cancelled. A Power of Attorney for non-family is a must and recommended for everyone as at times it is difficult to prove you are part of the family. Also, they require the passport of the deceased person plus an original or certified copy of the death certificate.
Death of a US citizen in Mexico should be reported to the Embassy or Consulate so that a Report of Death of a U.S. citizen abroad can be issued. This document is necessary to settle legal and estate matters in the United States. Upon issuance of a local (foreign) death certificate, the U.S. Embassy or consulates may prepare a Consular Report of the Death of a U.S. Citizen Abroad. Copies of that report are provided to the next-of-kin or legal representative and may be used in U.S. courts to settle estate matters. To prepare this document, consular staff will need original evidence of U.S. citizenship and identity of the decedent and the original Mexican death certificate.
