# marriage and real property laws



## La Osita (Oct 31, 2010)

I've searched the internet and this forum but haven't been able to find any information...

My husband (Mexican) and his brother are in the process of dividing the "family" property we all live on. It's been in their family for a number of generations. My husband and I live in the house he built. His brother lives in the original family home. We are using a lawyer to help process the paperwork. My husband believes it's just simpler for him to put the property in his name alone but he also believes that because we are married it's legally my property too. I'm thinking he may be wrong about that.

Here's my question/dilemma. My husband seems to believe that when he dies, should I still be alive, the property would be mine outright. I'm thinking that because the property would be in his name only and because we married "separacion bienes" the property upon his death would revert back to his brothers and sisters and I could very likely end up out on the street! He wants to protect my interests... and so I am wondering if putting the property in both our names would protect me should he die before me? I worked with real estate law in the US many years ago but I know from hard experience that things in Mexico can be very different.

Anyone have any background or info on this sort of thing? I can't seem to find anything in the cyber world regarding inheritance law in Mexico. Thanks!


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## Isla Verde (Oct 19, 2011)

itnavell said:


> I've searched the internet and this forum but haven't been able to find any information...
> 
> My husband (Mexican) and his brother are in the process of dividing the "family" property we all live on. It's been in their family for a number of generations. My husband and I live in the house he built. His brother lives in the original family home. We are using a lawyer to help process the paperwork. My husband believes it's just simpler for him to put the property in his name alone but he also believes that because we are married it's legally my property too. I'm thinking he may be wrong about that.
> 
> ...


Why not ask a trustworthy Mexican lawyer your question?


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## La Osita (Oct 31, 2010)

Ahm, yup, but I haven't found a trustworth mexican lawyer as of yet! I was ready to ask if that might be an oxymoron but I suppose it's not fair to generalize. 

I'm hoping that someone here might have had some experience or personal knowledge of howsuch things work.


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## La Osita (Oct 31, 2010)

ok, smart ass comment aside... it's my understanding that lawyers (abogados) in mexico are not trained and knowledgable in matters of real estate or inheritance.


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## Guest (Mar 11, 2012)

You need to talk to a Notario. They are the only attorneys in MX who can deal with both real estate and wills. Ask someone you know and trust for a recommendation.

Here is one listing of Notarios on the internet for Tequis:

Notaria Publica No 11
Centenario sur 17 a, tequisquiapan 76750, Tequisquiapan (Queretaro)
Tel: (414) 273-1241 


Notaria Publica No 2
Abasolo 10 a, centro 76800, Tequisquiapan (Queretaro)
Tel: (427) 272-0944


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## La Osita (Oct 31, 2010)

Thank you. I'll check into that. I need to learn about the differences between abogados and notarios. I worked for lawyers in the US... it's a whole different system here.


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## Isla Verde (Oct 19, 2011)

itnavell said:


> Thank you. I'll check into that. I need to learn about the differences between abogados and notarios. I worked for lawyers in the US... it's a whole different system here.


Notarios are also abogados, ones with specialized knowledge in areas like property and inheritance law. Of course, it's a different system here - after all, it is a different country!


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## La Osita (Oct 31, 2010)

Muchas gracia ****** Carlos for the extra bit of legwork you did for me. I'll give a call on Monday.


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## RVGRINGO (May 16, 2007)

You should definitely appear on the deed. You will own 50% of the property with your husband owning the other 50%. In Mexico, a survivor must get a new deed upon the death of a spouse and there will be 'closing costs' on that 50%. Only a NOTARIO can deal with these matters and they 'buyer' has the right to choose the notario.


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## cscscs007 (Jan 8, 2011)

If I were you I would have at least two names on the deed. A friend of mine was in Mexico last month dealing with exactly this. His mother passed away and all of the property in Jalisco was in her name only. It took 6 1/2 weeks and 70,000 pesos to get the deeds transferred into his name. This could have all been avoided either by having two names on the deeds and having a will. It was a tough lesson to learn.


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## La Osita (Oct 31, 2010)

Good thought. I was thinking that when I do meet with the Notaria I will have Wills made up as well. Small price to pay now rather than have to deal with bigger issues down the road.


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## TundraGreen (Jul 15, 2010)

itnavell said:


> Good thought. I was thinking that when I do meet with the Notaria I will have Wills made up as well. Small price to pay now rather than have to deal with bigger issues down the road.


Wills are half price in September. I believe this is true all over the country but it is certainly true in Jalisco.


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## La Osita (Oct 31, 2010)

That's interesting. I would never have imagined. Any idea why this is done? It ought to be done in the US! It's very sad to see what happens when folks don't make out a Will and probate takes it's toll. I don't know how expensive it is here but I know it was costly in Florida.


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## TundraGreen (Jul 15, 2010)

itnavell said:


> That's interesting. I would never have imagined. Any idea why this is done? It ought to be done in the US! It's very sad to see what happens when folks don't make out a Will and probate takes it's toll. I don't know how expensive it is here but I know it was costly in Florida.


I got a simple will with just default options leaving things to my two kids and naming one of them executor for about $1300 mxn. That was last September during the discount month.


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## mickisue1 (Mar 10, 2012)

Is there a Mexican equivalent to owning in joint tenancy?

What I read here implies that all properties owned by more than one person are owned in the equivalent of tenants in common.

With joint tenancy, both tenants own 100% of the property, so if one dies, the other becomes the sole owner with no issues.

It sounds as though that's not a possibility in MX?


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## RVGRINGO (May 16, 2007)

mickisue1 said:


> Is there a Mexican equivalent to owning in joint tenancy?
> 
> What I read here implies that all properties owned by more than one person are owned in the equivalent of tenants in common.
> 
> ...


It appears that you understand the differences. Each spouse owns 50% & must inherit the other 50%, using a notario and paying the associated fees for a new 'escritura'.


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## Detailman (Aug 27, 2011)

RVGRINGO said:


> It appears that you understand the differences. Each spouse owns 50% & must inherit the other 50%, using a notario and paying the associated fees for a new 'escritura'.


And that is the reason why wills are so important. If I understand correctly, if for example the husband died without a will, the property would not necessarily go to the wife as it woud in the US or Canada. She would simply retain her 50% share.

In the event that the land was completely in the husbands name and there was no will, upon his death the wife might not inherit any of the property at all. Mexican law is completely different from what we have become used to NOB. And that applies to many of their laws.

Is this the correct understanding?


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## mickisue1 (Mar 10, 2012)

Detailman said:


> And that is the reason why wills are so important. If I understand correctly, if for example the husband died without a will, the property would not necessarily go to the wife as it woud in the US or Canada. She would simply retain her 50% share.
> 
> In the event that the land was completely in the husbands name and there was no will, upon his death the wife might not inherit any of the property at all. Mexican law is completely different from what we have become used to NOB. And that applies to many of their laws.
> 
> Is this the correct understanding?


As is usually the case, your excellent answer brought up another question.

We have wills, but they are "American wills."

Would the equivalent of "I leave everything to my spouse, X, and if s/he should precede me in death, to our offspring A, B, C, D _per stirpes_" work in MX, or is it necessary to state, "I leave my 50% of the property located at Dream Retirement Living."??


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## La Osita (Oct 31, 2010)

I have yet to see a notario for a definitive answer to my question, but in the meantime I did get a response to my query via the AllExperts website, as quoted below:

"_The laws regarding marital property and intestate sucession in Mexico are very similar to those in the United States. The portion of the property received by your husband falls outside the marital family property even if the marriage was under the regime of "bienes mancomunados". However, if your husband dies, and there is no will, the property will go to you and any children you had with him. If he executes a will, he can explicitly leave the property to you. 

I think the best option is for your husband to execute a will leaving the property to you.
Another clever option is to donate the property to you and have him reserve a life estate (usufructo vitalicia). In that case, no need to worry about a will or a intestate sucession.
Hope all this helps.
Sincerely,
Lic. John Lee Ward
Córdoba, Veracruz _

I still intend to follow up with a notario and will definitely have Wills drawn in September! My understanding is that one would need to have both a US Will and a Mexican Will in order to avoid probate issues.


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## AlanMexicali (Jun 1, 2011)

*American wills*



mickisue1 said:


> As is usually the case, your excellent answer brought up another question.
> 
> We have wills, but they are "American wills."
> 
> Would the equivalent of "I leave everything to my spouse, X, and if s/he should precede me in death, to our offspring A, B, C, D _per stirpes_" work in MX, or is it necessary to state, "I leave my 50% of the property located at Dream Retirement Living."??


I have heard it works both ways but cannot confirm that an American will will be honored in Mexico so that the property will be transferred over to the dependent without trouble or taxes being added as if you sold it to them. In my case I have both, a Mexican and American will, just to be safe, and clarify everything in detail on both sides of the border. 

I have a friend who recently was getting sued over property in her name, his niece, a Mexican National by an ex wife of her uncle, the owner of the house without a fidiecomiso, in Mexico. The ex wife, also a Mexican National, lost and she, my friend, as a Mexican National gave the property to her uncle's son, an American born in the USA, as requested in his American will. The taxes were limited but not nothing that she ended up having to pay as a favor to her uncle, born in the USA also. His son then paid for a fidiecomiso and the whole thing took 2 years and cost mucho dinero. Had he had a fidiecomiso himself [uncle] this would have been different, I would presume. The house was near the Sea of Cortez in Baja. So my advise is to have 2 wills with instructions on both and being clearly stated.


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## RVGRINGO (May 16, 2007)

Definitely have Mexican wills for all Mexican property and accounts; in Spanish.
Definitely have US wills for all US property and accounts; in English.
Keep them separate and without conflicts. Where it may say 'all property', be sure to say 'in country X'


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## Detailman (Aug 27, 2011)

itnavell said:


> I have yet to see a notario for a definitive answer to my question, but in the meantime I did get a response to my query via the AllExperts website, as quoted below:
> 
> "_The laws regarding marital property and intestate sucession in Mexico are very similar to those in the United States. The portion of the property received by your husband falls outside the marital family property even if the marriage was under the regime of "bienes mancomunados". However, if your husband dies, and there is no will, the property will go to you and any children you had with him. If he executes a will, he can explicitly leave the property to you. _
> 
> ...


All my research produced conflicting answers. Some suggested that your original thoughts from your first post were the way things would work out so it would be best to have the property in both names (50/50) and additionally to both have wills spelling out who gets what in the event of the death of one spouse. If the property was to be in simply the name of your husband it would be even more important for your husband to have a will spelling out the disposition of assets.

Some research sites also indicated that RVGringo and AlanMexicali are correct in suggesting that if you are an American citizen it would be prudent to also have an American will specifying your wishes.(These sites indicated that you should do this even if your only property was in Mexico.)

In summary, the best scenario is to: (1) have the property in both names (50/50 as there is no joint tenancy); and (2) both have Mexican wills that spell out your wishes as to the disposition of your assets; and (3) back the Mexican will up with an American will that mirrors the wishes that you specified in your Mexican will; and (4) verify the above with the proper Mexican authority (I forget the spelling right now but like a notary but actually a specially trained and state appointed lawyer) as already posted by others on this thread.

The only thing I would be cautious about is if the Mexican authority suggested that an American will was not necessary I might simply ignore this advice and have one anyways.

All the best to you in protecting your interests. Personally I have been an executor 4 times going through probate without lawyers and will have to do so one more time. This is one of the situations where everkything is in the "details" (he, he - couldn't resist that.) I am no longer accepting reqeusts to be an executor.

Detailman


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## RVGRINGO (May 16, 2007)

Each will should specify that it pertains only to the property and accounts in THAT country. It should not mention any other will in any other country. Those should also stand alone and specify the property, accounts and possessions located only within that country.

A 'Notario' is the specially trained attorney, appointed by the governor of the state, who deals with such matters. No others may do it. They are located in offices (f) called 'Notaria' and are usually designated by a number in each municipalidad; Notaria #5, for example, who did our deeds and wills.

Notaria = the office, or a female.
Notario = male


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## AlanMexicali (Jun 1, 2011)

RVGRINGO said:


> Each will should specify that it pertains only to the property and accounts in THAT country. It should not mention any other will in any other country. Those should also stand alone and specify the property, accounts and possessions located only within that country.
> 
> A 'Notario' is the specially trained attorney, appointed by the governor of the state, who deals with such matters. No others may do it. They are located in offices (f) called 'Notaria' and are usually designated by a number in each municipalidad; Notaria #5, for example, who did our deeds and wills.
> 
> ...



That might work if your wife or relatives are not Mexican Nationals at the moment in that the right hand does not know what the left hand is doing, but we both have property in both countries in our names and I am an American citizen still. Taking into consideration things can go wrong in either country because of this we decided not to worry about inheritance taxes or disclosure issues in both the USA and Mexico. My nieces are Canadian citizens and my wife's nieces and nephews are Mexican Nationals. Do we want to risk it? There was no need to mention our other wills in our other wills out of that country. It gives us peace of mind.


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## Isla Verde (Oct 19, 2011)

RVGRINGO said:


> Notaria = the office, or a female.
> Notario = male



To be more precise:

notari*o* = male attorney

notari*a* = female attorney

notar*ía* = the profession or office


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## Detailman (Aug 27, 2011)

RVGRINGO said:


> Each will should specify that it pertains only to the property and accounts in THAT country. It should not mention any other will in any other country. Those should also stand alone and specify the property, accounts and possessions located only within that country.
> 
> A 'Notario' is the specially trained attorney, appointed by the governor of the state, who deals with such matters. No others may do it. They are located in offices (f) called 'Notaria' and are usually designated by a number in each municipalidad; Notaria #5, for example, who did our deeds and wills.
> 
> ...


Further research indicates that RVGringo is right. Each will should deal only with the assets in "that" country. They should not be cross-referenced.

*So #3 of my post above should be disregarded as it is in error. Sorry! *

Most of the sites visited in research still indicated that it is still very important to have a will even if the property is 50/50. The 50% belonging to the husband does not appear to automatically go to the surviving wife in all jurisdictions in the absence of a will.

DO YOU KNOW WHAT THIS SHOWS?

These older expat *&@$'s  know one heck of a lot more than those of us that are still in the transitional stage of moving to Mexico. Hats off to you.

I hate eating crow for supper!!!


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## AlanMexicali (Jun 1, 2011)

*American wills*



Detailman said:


> Further research indicates that RVGringo is right. Each will should deal only with the assets in "that" country. They should not be cross-referenced.
> 
> *So #3 of my post above should be disregarded as it is in error. Sorry! *
> 
> ...



You have me a little concerned and in a quick search found this article. It appears the US has no inheritance tax on foreign assets left to a spouse or offspring, but require disclosure to the IRS if sold and the money brought into the US.

Estate Planning with Foreign Property | General Practice, Solo and Small Firm Division

To find out for sure a consultation with a Mexican Notario would probably answer the question about Mexican law. A US will might have jurisdiction in Mexico if written with the standards required there, also interesting. An International will might be the answer in my complicated case. It appears a simple will in both countries would work for non immigrants but might have an IRS question if sold and the money brought back to the US. If my wife and I perish together the 4 wills covered that also and trustees for some of the property if one precedes the other. It was a complicated well detailed scenario filled decision we both agreed on.


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## La Osita (Oct 31, 2010)

A little salsa and cerveza makes crow taste just fine! Don't stop posting Detailman, I enjoy reading your 'research'. The conflicting research that I had done prompted me to start this thread. I just couldn't find a definitive answer to my questions. I've learned alot and will be much more comfortable when speaking with a notario or notaria as the case may be.


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## Detailman (Aug 27, 2011)

AlanMexicali said:


> You have me a little concerned and in a quick search found this article. It appears the US has no inheritance tax on foreign assets left to a spouse or offspring, but require disclosure to the IRS if sold and the money brought into the US.
> 
> Estate Planning with Foreign Property | General Practice, Solo and Small Firm Division
> 
> To find out for sure a consultation with a Mexican Notario would probably answer the question about Mexican law. A US will might have jurisdiction in Mexico if written with the standards required there, also interesting. An International will might be the answer in my complicated case. It appears a simple will in both countries would work for non immigrants but might have an IRS question if sold and the money brought back to the US. If my wife and I perish together the 4 wills covered that also and trustees for some of the property if one precedes the other. It was a complicated well detailed scenario filled decision we both agreed on.


Any of my posts to date on this subject do not take into consideration any ramifications whatsoever of a tax nature. That is an entirely different matter. When different assets and trusts are involved you would have to consult a lawyer and perhaps an accountant specializing in taxation issues, including those that affect expats living in a different country.

I know one of my relatives who just spent $6,000 CND drafting a will because the trusts were so involved. That becomes an entirely different game and needs specialized knowledge.

I would say you need that specialized knowledge but again this is a field (tax implications) that I know little about.


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## tommygn (Dec 2, 2011)

You are right. If you are married "Separacion de Bienes" you are not legally the owner, but you do have preference for his estate at his death. Wifes get the inheritance first, then children, then brothers. Still you could end up in a messy lawsuit.

You basically have two options, I advise the first one:

- Go to a public notary and have him make a will where he states that you get the house. (Best option)

- Be the co-owner of the property (But other family could end up inheriting half the house)

I seriously advise the first option. It should be no more than 3,000 pesos and there are ocasions where its free. (on Jornadas Notariales)

I am very familiar with Real Estate laws in Mexico, Im a broker and developer.


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## La Osita (Oct 31, 2010)

Thank you. So, it is as I thought originally. There's an awful lot of confusing and conflicting information out there on the web and in fact, the Mexicans I have spoken with seems to disagree with eachother as well. We'll definitely be making Wills with a Notario when the property split is being done.


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