By: Luis Gerardo Ramírez Villela
Succession planning has become essential today and, together with proper wealth management, will allow the protection of assets and, consequently, will allow the future of family members to be secured.
In this respect, proper succession planning involves not only the preparation of a will and having all the necessary information for proper management of family assets but also creating a strategy for certain assets – inside or outside of Mexico – that are protected through a trust or some other legal figure and allow for a higher investment return on them in the future.
Below is an analysis of the most relevant aspects of the will and succession process in Mexico.
Will
A will is a very personal act, revocable (once a new will is issued, the previous one is revoked, the last one being valid) and free (a will made under the influence of threats against his person, his property or his family is void), by which a person over 16 years of age and who is in full use and enjoyment of his faculties, disposes of his property and rights, and declares or fulfills duties for after his death.
Wills are classified into two groups: ordinary and special. Regarding ordinary wills, these are classified as follows:
- Open Public Will. This is granted before a Notary Public.
- Closed Public Will. It can be written by the testator or by another person at his request. The paper on which the will is written or the envelope containing it must be closed and sealed, or he must request that it be closed and sealed in his presence, and he must show it to the Notary Public in front of witnesses.
- Simplified Public. This is the one in which the heirs are established in the same deed of acquisition of a property intended or to be used as a home. This provision is made before the Notary Public.
- Holographic. This is the handwritten document of the testator. Holographic will shall not take effect if they are not deposited with competent authority.
In Mexico, Notaries Public have a promotion during the month of September of each year and they call it the “Month of the Will” where the fees are lower than those commonly charged for this type of service.
To carry out this process, the corresponding form that will be given to them by the Notary Public must be filled out and they must also have basic legal advice to carry out this entire process.
Succession Trial
The succession trial is a procedure that allows determining and declaring who will be the heirs of the deceased's assets, especially in cases where there is no will or if there is one, it is challenged by one of the interested parties. The competent authority will determine which assets and rights form part of the estate, as well as the people who have the best right to it.
This type of procedure can be carried out before a family court judge or before a Notary Public, provided that all interested parties agree. As soon as the succession procedure begins, the judge or Notary Public before whom it is processed must obtain the report of the existence or non-existence of any testamentary provision granted by the author of the succession.
It is necessary to have the death certificate of the author of the inheritance and the documentation that demonstrates the link that the heirs had with the deceased.
When there is no will or when the will was declared null or void or the appointment of an heir is invalid or the testator did not dispose of all his assets, the judge must determine who the heirs are, based on civil legislation. To this end, the interested parties must prove their relationship with the author of the succession or the right that the law grants them to inherit.
