Chicago Immigration and Estate Planning Lawyers

Immigration, Successions, and Wills in Illinois

"Succession" is the term commonly used in Countries that follow the Civil Law system (such as Mexico) to refer to the inheritance process, this is, the way in which the state --the global assets, rights and obligations-- of a deceased person (whom in Mexican legal practice is often referred to with the Latin expression de cujus) is conveyed to his or her heirs.

It should be taken into consideration that Mexico's political system is organized as a federal state and therefore the following is just an overview of some of the most common rules and practices followed in the Nation, but each state of the Mexican Federation has its own inheritance laws and different Court procedures. In some instances we will make reference to some articles of the Federal Civil Code, but this will be done only for illustration purposes since, as stated above, inheritance law is usually a state issue and the Federal Civil Code would only be applicable in limited cases, such as in relation to Wills granted out of the Country.

In accordance to Article 1281 of the Federal Civil Code the rights and obligations of a deceased person are not extinguished by his / her death. The estate of such deceased person is disposed of either by following the last will of the testator or in case the de cujus did not leave a testament, by operation of law, applying the intestate provisions contained in the particular Civil Code of each state. The first case is called a testamentary succession and the second case is called either an intestate or "legitima" (legitimate) succession (in this case, the word legitima is used in the sense of something derived from the law). The testamentary succession gives place, at the time of death of the testator, to a probate which can be followed before a Notary Public if the Will is not contested and there are no conflicts between the heirs or legatees and none of them are minors, or before a Family Court in the later cases. In the case of an intestate succession a Court will always take at least some part in the inheritance procedure.

We will first talk about the testamentary succession, starting by making reference to some concepts:

The Will or testament (testamento) is the document which reflects the decisions and instructions left by a person in respect to the way in which his or her state will be handled after his or her death (we are using the words Will and testament as synonymous. In Mexico only one term is used: "testamento" regardless of if the assets are comprised of real state or personal properties).

The testator may appoint in his/her Will either heirs (herederos) or legatees (legatarios) or a combination of both. Usually, the testator also appoints in his/her Will an executor or executrix (who can also be one the heirs); the testator may even determine that his/her state should be administered through a trust, a figure which in Spanish language is called fideicomiso (in such trust, in accordance to Mexican Law, a Mexican Bank should be designated as the trustee). It is a good idea to include clauses pertaining to the possibility of the simultaneous death of the testator and his / her spouse. The Will may also contain provisions such as the recognition of a child or of a debt. These provisions are considered irrevocable clauses, since once expressed in a Will, they will prevail, even when the testator revokes such Will or issues a new one.

In Spanish the term "legacy" (legado) refers to a legatee inheriting rights over a specific or determined asset (regardless of if such asset is real state or personal property), unlike a heir, who will acquire a universal title (or a percentage of a universal title) in regard to the entirety of the state (the state is often referred to in Spanish as the masa or the masa sucesoria).

Any person who enjoys legal capacity and is older than 16, can grant a Will. Any person can be designated a heir or legatee, even unborn persons at the time in which the Will is drafted as long as those persons have already been conceived at the time of the death of the de cujus.

In Mexico, testators enjoy freedom of disposition (in other Civil Law countries it is not uncommon to have a partible inheritance system, in which at least a portion of the de cujus estate must be transferred to his/her spouse or children) and they may transfer their state or specific assets of their state to whomever they please. Nevertheless, any obligations that the testator might have to provide child support or support to his/her older parents, spouse or concubine (common law spouse) if such persons are not capable to work, should be warranted.

A Will can be revoked or changed at any time. Usually it is considered that any new Will revokes the previous unless stated otherwise by the testator, who may determine that the previous Will subsists as a whole or in relation to some of its dispositions.

Under Mexican Law there are different kinds of Wills (maritime Wills, military Wills, agrarian Wills, etc.), but the most relevant kinds are:

1. "Open" Public Testament. - The Will is drafted by a Notary Public or by a lawyer and then signed before a Notary Public in accordance to several formalities stipulated by law. One of the Notarial deeds of the Will is deposited in General Archive of Notaries and an other deed is deposited in Public Registry of Properties. This is the most common way to grant a testament.
2. "Closed" Public Testament. - The Will can be drafted directly by the testator or by another person at his/her request (obviously, if that is the case, it will always be advisable to hire a lawyer to do so). The Will is placed inside of an envelope before a Notary Public who stamps his/her seal in such closed envelope. The envelope containing the Will is then deposited by the Notary Public in General Archive of Notaries.
3. Simplified public testament. - (This kind of Will may not be recognized in all states or might have a different name depending of the Law in each state). In certain cases when someone buys a house or apartment, it might be possible to include in the Deed of Property (escritura) a Clause designating legatees for such specific property in the event of death of the owner. In agrarian law, when ejidatarios or comuneros do have a title issued by Agrarian Authorities which is registered before the National Agrarian Registry a similar mechanism is available.
4. Holographic Testament. - It is a Will entirely handwritten and signed by the testator. The law applicable to this type of Will differs in each State (for example if one of the designated heirs acts as a witness, the testament may be voided), and probably this way of granting a Will should be avoided unless you are well versed in Mexican Law. As a rule, in order for the Will to be valid and viewed at the time of the probate as a "public" Will instead of as a "private" Will (a public testament will always be less vulnerable to any contests at the time of the probate), the document should be deposited with the authorities with jurisdiction to receive in deposit this kind of documents.
5. Will (Testament) granted abroad. - Testaments granted in a foreign country will take effect and will be honored by Mexican Authorities as long those testaments were granted in accordance the laws of the country in which they were drafted, nevertheless, probate proceeding in Mexico would be greatly simplified if a person living abroad who owns assets in Mexico grants his / her Will pertaining to his / hers Mexican assets before the Mexican Consulate, who in this case would be taking the role of a Notary Public.
6. There are other types of Wills which are called "special" or "private" testaments; as a rule, this kind of Wills are admissible when there are special circumstances preventing the granting of a "public" Will, such as the testator suffering from a sudden mortal illness, or other similar circumstances that prevent him / her from appearing before or requesting the presence of a Notary Public (or in lack of a Notary, of some other authority such as a justice) to grant the testament before him / her.

In the case of aliens who "own" through a fideicomiso, real state located within the restricted zone near the international borders or the coastlines, the fideicomiso contract (a real state trust contract in which a Mexican Bank, acting as the alien's trustee, holds the title to the property) may contain, if requested by the settlor (the alien who "buys" the property), clauses determining what will happen in the event of the death of the trust beneficiary. (For further information on this, see the real state section of this website).

If you own properties in Mexico, it will always be advisable to grant a Mexican Will, even if your intention is to leave such property or properties to your spouse since Mexico's intestate laws do not recognize a right of survivorship permitting the property to be automatically transferred to the surviving spouse. In some cases (depending on the Civil Code of the state in which the property is located), in lack of a testament all property will go to your children or your spouse will only inherit a percentage of the property along with your children. If you don't grant a Will your assets may not be distributed to the people you wanted to or in the way you would have wished.

If you don't speak good Spanish, you may request the Notary Public to have an interpreter present at the time of granting you Will or maybe, writing it yourself in English and using the "closed public testament" format might be an option for you (although in this case you should do it having the advise of a Mexican Lawyer fluent in English). In any way you should take care to fully understand the content and legal consequences of your Will.

Finally, if you have assets in different Countries and you don't want to include your final provisions regarding your international state in your Mexican Will, it is advisable to only designate legatees (and not universal heirs) in your Mexican testament pertaining to your properties and rights you may own in Mexico, and to expressly state in the text of your testament that your last will in relation to your state in other Countries is contained on a different document. If you grant Wills in different countries it is advisable to cross-reference them in order to prevent problems in regards to which document should be followed or to avoid conflicts in regard to if any of those wills revoked the others.

INTESTATE SUCCESSION

In the event of a person dying with out leaving a testament or in case such Will was declared void or if there are assets that were not referred to in such Will, the Civil Codes of each state contain the rules in accordance to which such assets shall be distributed. When the law is used in lack of a testament or in substitution of the will of the de cujus, the procedure followed is an intestate succession in a form of a trial called Juicio intestamentario, which is usually followed before a Family Law Court (It may be the case that in some jurisdictions the trial would take place before a Civil Law Judge).

In accordance to the Federal Civil Code (we are using the Federal Law only for illustration purposes; usually, the law that should be applied is the one from the state in which the inheritance assets are located and the Law varies from one state to other), in case of death without a testament, the persons entitled to inherit the state of the deceased person are his / her descendants, spouses, ascendants, collateral blood relatives within the fourth degree ("affinity" relatives such as sisters or brothers in law are not entitled) and his / her domestic partner or "concubine" (the word "concubine" does not have any derogatory meaning in Mexico's legal language, "concubinato" is the legal term in Mexico for an institution which has some similarities to what is called a common law marriage in other legal systems). In the absence of any relatives the state would go to the public welfare.

The closest relatives of the de cujus exclude the most distant relatives (if the deceased person had, for example, children, brothers, and grandchildren, only the first ones would inherit). Those who are in the same degree of kinship inherit in equal shares.

The children (and some times, depending of the law of each state, the spouse) have preference over the parents of the deceased person. In the case of Civil Relationship (those between the adopter and the adoptee) the inheritance rights are only between adopter and adoptee.

In some states the espouse or concubine (common law espouse) are not entitled to inherit if they already have their own state and in other jurisdictions, they will only inherit an equal share of the deceased person's state along with the children of the de cujus (this is one of the reasons why it is so recommendable to grant a testament, specially when a person had children with different partners).