September 9, 2017
Dealing with the death of a loved one or friend is always challenging, but when the death occurs in a foreign country, it can be be nearly overwhelming … especially if we don’t know how things work … or miss completing even minor details.
As a result, the fine attorney, Lic. Spencer McMullen, as an ongoing contributing expert for Yucalandia.com, has published a superb set of instructions & insights on how to make the post-death process as smooth as possible.
Lic. Spencer McMullen has spent over the past 10 years serving Mexico’s biggest & oldest expat community around the Chapala ~ Lakeside area. He can be contacted at:
Without any further ado, here is Spencer’s article:
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How to Die in Mexico
While many focus on coming to Mexico to live a relaxed lifestyle, nothing lasts forever and old age or bad fortune befalls each of us one day. As Benjamin Franklin said the only two sure things in life are death & taxes.
The reality is that the narcos won’t likely get you (loose animals in the road at night are a bigger danger), as the vast majority of the deaths I see are from illness and a few auto accidents.
Planning ahead allowa your heirs, whether family, friends or charities to have fewer hassles when administering your estate.
Planning ahead means ~ having a will, ~ including beneficiary clauses for your assets wherever possible, ~ knowing & identifying who will handle things when you are gone, ~ having your cremation prepaid, and ~ having~establishing a good relationship with a doctor who can come and issue the death certificate.
Here in Jalisco, real estate people can put a beneficiary clause to avoid probate and make the property transfer easier, as the only restrictions are that you can only name as beneficiaries your spouse or parents, grandparents or children and grandchildren. You will have to prove this relationship when you want to change the deed by providing marriage or birth certificates along with apostilles or legalizations depending on where the certificates are from. Other states do not have provisions for beneficiary clauses in property deeds so you will need to leave a will.
Most banks allow you to leave your account to beneficiaries if you die. It is a good practice when designating beneficiaries to name replacements as things happen, and you may live a long life, longer than the first person you named as beneficiary. …. Editor’s Note: Some people find it even more convenient to be able to immediately & smoothly access bank account funds to have the ‘beneficiary’ instead listed~registered as a signatory party on the account. Consider though, that you must trust this person implicitly, because giving them signature authority over your account(s) now, means they can access your funds now, and sadly, some unscrupulous people have taken advantage of this.
A will serves to dispose of your assets, both assets you have now and others you may later acquire. Also an important part of having a will is the naming of an executor. Many people put off making their will as they say they have beneficiary clauses or have few assets but an important part of a will is the executor who will fight for you when you are gone, as powers of attorney expire upon your death and the will then kicks in. If someone steals your property or embezzles your funds or if your death was related to an auto or other accident, the executor of your estate will be the legal representative to pursue your case with the insurance companies and in the courts. While naming your children as executors may make you feel comfortable, do they speak Spanish and will they be able to travel down to Mexico to properly take care of your affairs if needed and if there is a prolonged legal matter?
A Mexican will, to dispose of property that has no beneficiary clause, if done through a Notary Public is registered in the national will registry, so nobody can change it after the fact. A few US and Canadian attorneys living in Mexico offer to make wills but they are not registered and suspiciously in many cases the heirs never find the wills and later find out that friends and families of the attorneys now have the deceased’s property. A will made in Mexico in front of a Mexican notary is valid in Mexico as well as in other countries. The only requirement may be an apostille and translation although we work with notaries who do dual column wills in both English and Spanish so that way all involved know exactly what each part of the will says. You may choose that your will is only valid in Mexico or worldwide. Generally speaking it is best to have a will in each country where you have property to avoid having to validate a foreign will and it is also better when having to transfer real estate.
When naming people as beneficiaries, heirs, leaving them bequeaths or other items or assets, please be sure and check their full legal name to avoid problems when they come to receive the asset. Mexico is very strict with names, as Billy Smith is not the same person as Billy James Smith. In wills and property deeds you can place name variations to clarify that a person is one in the same, such as “Ana Valeria Salas also known as her married name of Ana Valeria Mac Gregor” . Also if you wish to leave property to a charity or legal entity, it is best to ask them for their corporate documents to see their exact legal name. Many people know entities by their nicknames or names in English but are ignorant of their true legal registered names in Spanish. Be sure to specify which office or branch will receive the money, merely naming the Red Cross may cause problems as there is the national Red Cross, Mexican Red Cross, Jalisco State Red Cross and one office in Chapala and another in Ajijic. Being specific avoids disputes later on.
After having a will you need to have a personal doctor. This will prevent your being taken to the morgue for an autopsy if you are found dead alone unless foul play is suspected then you will want to call the police. Your doctor can come to where you are found and see if you died from natural causes, avoiding having to make others fill out forms to claim your body. Your doctor should also know your full legal name (best to give him a copy of your birth certificate and passport) as well as your parents names and spouse´s name. This will ensure that there are no errors on the death certificate which are harder to change after the fact and which could cause problems or delays in the probate process.
Your doctor will need to do something with your cadaver so best to pay a prepaid cremation plan with one of the funeral homes so that way no person or authority is storing your body until someone comes to claim it and pay the fees to take it to the funeral home. We have seen cases where the family or friends went on vacation and the body went unclaimed for weeks and had to be taken out of refrigeration. A prepaid plan where family, friends and neighbors know about it will make sure the doctor knows where to have the body sent and will not have to pass the collection plate around in order to pay for it. The funeral home will usually coordinate with the doctor, your home country´s consulate and the civil registry for the death certificates and the report of citizen death abroad.
As soon as possible after the death the legal representative / executor / family needs to be notified in order to secure the valuables and important papers of the person. Police, “friends”, neighbors and others many times feel it is their right to steal property of the deceased or that it is not unethical. Locks should be changed immediately and all property photographed and inventoried and nobody should be left unattended inside the property. It is amazing how many people abscond with property saying oh Joe told me if he dies to take all his jewelry and sell it. Getting it back is harder and if they bring items back, usually things are missing. Make sure nobody is left alone in the home and that it is properly secured and if police or others need to enter the home that it is on a strictly necessary basis and at no times should anybody be left alone in the home.
To recap to die properly in Mexico you need to do the following:
Prepare:
1) Make sure you have beneficiary clauses on your bank accounts and home (if your legislation permits) … Editor’s Note: … or If you trust them, have them registered on the account with full signature authority for smooth access to each account.
2) Have a properly done will for each country where you have assets naming substitute heirs and executors.
3) Have a family doctor who knows you
4) Have a prepaid arrangement with a funeral home.
5) Have recently issued and apostilled / legalized copies of your birth / marriage certificates / adoption papers as well as those of any biological children who will receive property.
6) Have your executor / family / representative know where a copy of your will and other legal papers are as well as let those close to you know who these people are to notify them immediately. Let them know what you want done with your body or ashes.
7) Register that you are living abroad with your home country´s local consulate so they will have your emergency contact information.
Upon your death:
1) Have someone immediately notify your executor / family / representative / and family doctor.
2) Have your executor / family / representative notify your attorney and home country consulate
3) Have your executor / family / representative secure your property and assets and bar entry to everyone (except police and MP) to avoid theft of items or claims of possessory / squatters rights.
4) Have your executor / family / representative obtain copies of the death certificate, ashes, certificate of cremation and consular report of death abroad (first 20 copies are free so always request the 20).
5) Have your executor present copies of the death certificate to all banks with a request to freeze all accounts to avoid embezzlement and use of ATM cards, credit cards and checks tied to the accounts.
6) Prepare any probate filings and if necessary ask for a provisional designation of executor to fight legal battles in the courts.
Common Question(s):
Q. If you put a friend or family member on your checking or savings account as a beneficiary doesn’t that tangle them up as heirs, maybe inheritance tax, and such? I was wondering about adding a family member to your account itself as an owner. Then if one dies the family member (or friend) has legitimate immediate access to the account and can dispense the funds as per the will. Is this a good option?
A: Adding people as co account holders can be an excellent option if you trust that person, some have absconded with funds so beware. Usually there is no problem being a beneficiary and if tax is due you would pay one way or the other, better to talk to a tax specialist about tax consequences.
Contact information for the fine Attorney~Abogado Lic. Spencer Richard McMullen
Cédula Federal 7928026 / Jalisco Estatal #114067
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Feel free to copy while giving proper attribution: YucaLandia/Surviving Yucatan.
© Steven M. Fry
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