Dying in Mexico Without a Will

This article was prepared for general information only. It is not to be relied upon for legal advice or for decision making purposes. You are advised to consult a lawyer familiar with appropriate estate legislation.

This article was written by a Canadian Financial Planner with over 20 years specializing in non-residency. If you would like no-cost assistance or advice about Canadian Non-Residency, Click Here.

Why Have a Will?

A Will gives legal directions about the disposition of your property upon death. It ensures that your wishes are carried out under the supervision of the courts.

A good reason to have a Will is to prevent the law and/or a judge from deciding matters that ultimately are private affairs. The law will impose a plan upon you and your family, disposing of your property for you, if you do not have a Will.  This is as true in Mexico as it is in Canada. Here are some of examples of dispositions that could be forced on your family if you pass away intestate (without a Will):

Intestacy Problems

What happens if you die in Mexico without a will? You may not like the results.

Dying without a Will is referred to as dying "Intestate", and the governments of Mexico and the Canadian provinces have legislation that will govern how your estate is handled under those circumstances. Unfortunately, these are cookie cutter, one size fits all plans, that may not meet your needs or wishes.

Survived by Spouse Only
  • In most Canadian provinces, if you pass away without a Will and are survived only by your spouse, your spouse will be entitled to your entire estate. There may be some tax issues, but generally you can rest assured that your spouse will receive your estate.
  • In most states in Mexico, if you pass away without a Will, survived only by your spouse, your estate must be divided equally between your surviving spouse and your parents! Be careful because that would include anything you own, even in other countries.
Survived by Spouse and Children
  • If you are survived by your spouse and children, your spouse does NOT get your entire estate. In Ontario for example, the spouse is entitled to the first $200,000 of the estate. The remainder is divided equally between your spouse and your descendants (children and grandchildren) according to specific rules.
  • In most Mexican states, if a person passes away without a Will, survived by a spouse and children, most laws require that the decedent’s estate be divided in equal portions between the children and the surviving spouse. 
  • However, in most Mexican states, if the surviving spouse owns assets in his or her own name that are equal or exceed the portion of the children, the surviving spouse will inherit nothing. That’s right, the surviving spouse may get nada.

Obviously, the division of property becomes much more complicated if there are children from prior marriages, if the heirs do not agree to the disposition of property, etc.  In short, if you do not plan ahead by drafting a Will, a difficult situation can become a nightmare for the survivors.

Summary

Wills are a necessity in order to guarantee that your wishes will be respected.  They are also relatively inexpensive and having a properly drafted Will (or two) saves time, lowers expenses and helps avoid intra-family problems for those in second marriages. If you need help with your Canadian Will, we can refer you to Canadian lawyers who are familiar with the need for international Wills and we can provide guidance in the financial planning aspects. Contact us for assistance.

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