During "September - Last Will and Testament Month", here at Yucatan Compass Consulting, in order to facilitate executing a Last Will and Testament the notaries who work with us will lower their fees and translations will be done free of charge for foreigners.
In order that you may take advantage of the benefits offered during this time, we have made a list of the basic information you should know:
What is a Last Will and Testament?
Simply put, it is a legal declaration by which a person provides for the disposal and/or transfer of his/her estate (the net worth of a person at any time) - assets as well as his/her legal rights or entitlement to property of any kind - at death.
This implies that the Last Will and Testament will only be effective upon the death of the person (testator). However, this does not mean that the testator has an obligation to the heirs or beneficiaries (devisees, legatees), but is simply making provisions such that after death the heirs inheriting the estate are those the testator stipulated.
What are the characteristics of a Last Will and Testament?
Being a legal act, it is:
- Revocable: This means that a new Last Will and Testament may be executed at any time, due to because of any personal circumstance or family issue, your estate has changed and you want to execute a subsequent Last Will and Testament. A subsequent Last Will and Testament revokes all earlier Wills;
- In Person: A representative may not execute a Last Will and Testament, in other words, someone with a power of attorney may not execute a Last Will and Testament for someone else; it must be executed by the very person concerned. If that person does not have the capacity or competence to do so, unfortunately the Last Will and Testament cannot be executed (Article 1296, Federal Civil Code, abbreviated CCF in Spanish);
- Done freely and willingly, due to its being a universal provision (i.e., universally available).
What are the formalities of the Last Will and Testament?
The notary must be very careful in completing the forms prescribed by law in order for the Last Will and Testament to be fully effective. The notary must respect its execution as a single continuous proceeding; there can be no interruptions when the testator is in the process of executing the Last Will and Testament. The same must be read (aloud) and at the same time the testator must state his/her agreement to the notary as well as with its execution.
As a general rule, the Last Will and Testament is executed in private with the notary. Should the testator be accompanied by someone to the notary office, when it comes time to execute the Last Will and Testament, the notary asks those people to not take part in nor be present in the execution such that testator may freely express what he/she wishes.
Who can make their Last Will and Testament?
Everyone over 16 years of age, and who is not in a mentally abnormal state, while the impediment lasts, regularly or accidentally.
The law considers persons as being unable to draw up their Last Will and Testament if they are doing so under duress (threats, violence, etc. used to coerce a person into doing something) inflicted by his/her spouse or relatives in any degree against their life, liberty, honor or assets.
Who can inherit?
Everyone in the state has the capacity to inherit, but this can be disallowed on the grounds of any of the following:
I. - The absence of identity (those not conceived at the time of death of the bequeathor/testator or those born three hundred days after the death of the former).
II.- The crime, except when testator, indubitably and with irrefutable facts, forgives the offender, and establishes him/her as an heir after having knowledge of the crime committed:
- The convicted offender for having killed, ordered to have killed or attempted to kill the person whose estate is at issue, or parents, children, spouse or siblings of same.
- Anyone who has accused the bequeathor/testator or his/her spouse, ascendant relatives, descendants or siblings, of a crime deserving of the death or imprisonment, even when justified, unless that act was necessary for either the accuser or one of his/her descendants, ascendant relatives, siblings or spouse to be spared from said penalty.
- The surviving spouse who has been declared in a trial an adulterer during the life of the other spouse, if dealing with the estate of the innocent spouse.
- The father and mother with respect to the child abandoned by them.
- Whoever has committed a crime of willful endangerment against the deceased, his/her children, spouse or parent and for which such offender should be punished criminally, if so sentenced at trial.
- Whoever uses violence against the bequeathor/testator so that he/she makes, stops or revokes his/her Last Will and Testament.
- The father and mother with respect to their children born out of wedlock and the descendants of same, if they have not acknowledged those children or acknowledged them after the death of the bequeathor/testator.
- Whoever, pursuant to the Code of Social Defense, were to be guilty of suppression, substitution or assumption of an infant, whenever it is a question of the inheritance that should correspond to the latter or to the persons who have been damaged, harmed or aggrieved or were intended to be damaged, harmed or aggrieved by those acts.
- Co-perpetrator of the adulterous spouse, whether it be the estate of the adulterous spouse or the innocent spouse.
- Parents who abandon or prostitute their children or who were to commit an offense against public morals (and decency) with respect to the offended.
- Other relatives of the bequeathor/testator who fail to meet their maintenance (support and/or food allowance) obligation.
- The relatives of the bequeathor/testator who, finding the latter not being able to work and without resources, were not to give him/her refuge or find him/her refuge with a charity.
III.- The presumption of influence detrimental to the freedom of the testator, or contrary to the truth or integrity of the Last Will and Testament:
- Guardians and conservators are unable to acquire possession under the Last Will and Testament of the child, unless they are instituted before being appointed to the position or after the age of majority of the latter and the guardianship accounts have already been approved. The ascendant relatives or siblings of the minor testator are not included.
- The physician or minister of any denomination who has assisted or provided any kind of medical or spiritual help to the bequeathor/testator during the last illness prior to his/her death are incapable of inheriting under the Last Will and Testament; this is true as well for the spouses, ascending.
- Because of the presumption of influence contrary to the truth or integrity of the Last Will and Testament, the notary and the witnesses taking part in the Last Will and Testament are not capable of inheriting under said Last Will and Testament; this holds true as well for their spouses, descendants, ascendant relatives or siblings.
IV.- Lack of international reciprocity. . Foreigners who according to the laws of their own country cannot make a Last Will and Testament nor bequeath their assets ab-intestato to Mexicans are not capable of inheriting from the residents of the state under a Last Will and Testament or ab-intestato.
V.- Public interest/purpose. Those persons who are so prohibited by the Constitution of the Republic may not acquire possession, whether by inheritance or bequest.
VI.- The resignation or removal of a duty/position conferred in the Last Will and Testament, invalidates the inheritance to:
- Guardians, conservators or executors who, have refused the position/duty without just cause or because of misconduct have been legally separated from their exercise of same. The provision of the first part does not include those who, whereupon the judge having dismissed the disqualification, have fulfilled their obligation/duty.
- People called upon by law to perform legitimate guardianship and who refuse to perform said obligation/duty without just cause.
Which assets are possible to inherit?
All the assets that are part of the estate of the testator, personal property, real property, and legal rights on certain things as well as obligations also.
What figures appear in a Last Will and Testament?
- Legatee - designated with regard to specific assets; for example I want to bequeath my nephew John Doe, the apartment located at such address. This nephew will therefore only receive that asset because that is how it was so stated in his/her Last Will and Testament.
- Heirs - receive the other assets the person could have at death. On the death of the testator, the heirs should probate the Last Will and Testament, clarifying that the "cousin" is a legatee and therefore may only receive a specific asset.
- Executor – administers the assets of the deceased in the interim of being transferred to the heirs or legatees.
- Conservator - shall be in charge of taking care of the children while the guardian accepts said obligation/duty as conferred in the Last Will and Testament.
Does an error in the name or surname of the heir or legatee make the Last Will and Testament null and void?
An error in the name of the person or in the thing bequeathed does not make the legacy null and void as long as the heir or legatee were to demonstrate and prove what the intention of the testator was or if it could otherwise be known with certainly who the named person is.
What happens if the heir or legatee dies before the testator?
The Last Will and Testament allows for the testator to substitute the heir(
Need more info? Contact us! We will be happy to assist you.