Probate and succession in Mexico: who inherits

Two routes

Judicial. The succession is opened before a family court (juzgado de lo familiar). The CONDUSEF consumer magazine describes an intestate trial as four stages: succession, inventory, administration and partition. This is the route when there is a dispute, an heir who is a minor and not emancipated, or a closed will to open.

Notarial. The notarial laws of Mexico City (arts. 179-189) and Quintana Roo (arts. 135-136) let heirs process the succession before a notary when “no hubiere controversia alguna” and the heirs are adults, emancipated minors or legal entities. Opening a testamento público cerrado (a will delivered sealed to the notary) and declaring a special will formal are always done by a judge. If someone objects or claims rights against the estate, the judge tells the notary to stop.

In Mexico City the notary route for an intestate estate is available if the deceased’s last home was in the city, or if one or most of the assets are located there. Those who may use it are the spouse, ascendants, descendants and collateral relatives up to the fourth degree; outside those cases the succession goes to court (art. 181).

The notarial steps (Mexico City law)

1. The notary requests reports from the archives that a will exists, the judicial archive and the registry of will notices (arts. 180-181).
2. If there is a will, the heirs and the executor appear together, accept the inheritance, recognise the will’s validity and each other’s rights, and agree to proceed jointly (art. 182).
3. If there is no will, the heirs appear with two witnesses and the death and kinship certificates, and declare under oath the deceased’s last domicile and that nobody else has an equal or better right (art. 186).
4. The notary publishes the heirs’ declarations in a national newspaper, twice, ten days apart (art. 187).
5. The executor presents the inventory and appraisal of the estate for the heirs’ approval (art. 188).
6. The deeds of partition and adjudicación (award of the property to each heir) follow the will, or the intestate rules if there is no will (art. 189).

The deed transferring the home is then recorded at the state property registry, as described in the public property registry guide.

Who inherits without a will (Mexico City)

Article 1602 says the right to inherit by law belongs to descendants, the spouse, ascendants, collateral relatives within the fourth degree and the surviving partner (concubina or concubinario) if the conditions of article 1635 are met. Failing all of them, the state family agency inherits (art. 1636). Closer relatives exclude more distant ones (art. 1604), and relatives of the same degree share equally (art. 1605). Relatives by marriage do not inherit (art. 1603).

The main combinations in the code:

• Children only: equal shares (art. 1607).
• Children and a surviving spouse: the spouse gets the share of one child if the spouse has no property or less than a child’s portion; in the second case only enough to equalise (arts. 1608, 1624, 1625).
• Spouse and ascendants: half and half (art. 1626).
• Spouse and siblings: two thirds to the spouse, one third to the siblings (art. 1627).
• Spouse alone, with no descendants, ascendants or siblings: all the estate (art. 1629).
• No spouse, no children: parents in equal shares (art. 1615), then, failing ascendants, siblings, their children and other relatives to the fourth degree (arts. 1616-1634).

If the will covers only part of the assets, the rest follows these rules (art. 1614). Other states’ civil codes can differ, and you should treat the list as the Mexico City rule, not a national one.

Federal tax points

These are federal rules (Ley del Impuesto sobre la Renta, LISR).

• Receipt is exempt. Article 93, section XXII, says income “que se reciban por herencia o legado” is not taxed.
• Resale uses the dead person’s cost. Article 124 treats the acquisition cost and date of an inherited home as those of the deceased, so a later sale computes the gain from that original cost. See capital gains tax on property in Mexico.
• The non-resident question. Article 160 says that for non-residents, “adquisiciones a título gratuito” are taxed at 25 % of the appraised value, with an exception for family gifts under article 93(XXIII)(a). The text read does not say whether an inheritance received by a non-resident falls under that clause. Do not assume either answer; ask the tax authority (SAT) or a professional. See inheritance and gifts of property in Mexico.

Which professional to consult

• A notary (state-appointed, a senior lawyer) for the uncontested route.
• A real estate lawyer if there is a dispute, a missing heir or a foreign will.
• An appraiser for the inventory value required in the proceedings.