The legal system in Mexico is based on different philosophies and policies of jurisprudence than the systems in the U.S. and Canada. We will not be examining those differences in detail in this paper. For brevity, we will be dealing with the issues that are most likely to affect newcomers immediately. For those who require more detailed legal assistance, we can put you in touch with attorneys or notaries.
Lawyers vs. Notaries
The term “Notary Public” means significantly different things in Mexico than it does in Canada or the United States. Whereas north of the border, the official is a credible witness to certain documents or events, in Mexico the official is a legitimizor and authenticator of documents and transactions. In Canada, for example, one would use a notary to witness a signature or verify the authenticity of a photo on a passport application. In Mexico a Notary would be used to authenticate the deed to a piece of land and authorize the transfer of the title to a second party.
In Mexico, the State Governor appoints a Notary Public, and that person has a very significant public responsibility, not only for real estate transactions, but also for all legal transactions that require authentication. All legal documents – powers of attorney, by-laws of corporations or communal associations, trusts, deeds, wills – must be notarized in order to be legal. A Notary is an arbiter in a transaction who ensures that both parties are treated as they should be under the law. While they seem to have an inordinate amount of power, it is important to remember that a notary is personally liable for the legal process being followed correctly. If a party to a transaction can prove that a Notary did not follow a process correctly, that Notary may have to pay significant compensation to the complainant. A Notary Public is also expected to ensure the security of original documents and records.
A Notary Public must meet strict qualifications:
He / she must be a Mexican citizen;
He / she must be at least 35 years old;
He / she must have a law degree;
He / she must have at least three years experience in a Notary Public office;
He / she must pass a formal examination.
After meeting these requirements and assuming an opening is available, the individual may eventually be appointed by the Governor.
A lawyer is a trained professional similar to the U.S. and Canada. Their role in the legal system is similar to that of their northern counterparts. The main difference is lawyers in Mexico need to use Notaries to affix formal authentication and legitimization on transactions and documents. Lawyers represent one party, a notary represents all parties to a transaction.
If notaries have so much power, when would you use a lawyer? A lawyer is needed if you want to create a written contract, say, for the construction of a house, or to structure a business deal. If you are the subject of a criminal investigation, you may need to have a lawyer to represent your interests if charges are brought. If you have had a verbal contract that has been abrogated by the other party, you will want a lawyer to file for redress and manage the process through the judicial system.
The purpose of having a will is to minimize the cost and confusion of allocating your assets when you die. If you are a citizen of another country, but live in Mexico, be careful that your will or wills do not create more cost and confusion than would be created without them.
The first thing to determine is where your assets are located. If they are primarily located outside Mexico, then a will which was executed before your move to Mexico may be sufficient. If your assets are primarily in Mexico, then you need to think seriously about preparing a Mexican will. If you can arrange your assets efficiently, one will might be all you need. However, if there are complex asset location and distribution issues, you may need more than one will.
Each case is unique, so this description will only deal with generalities. Individuals should consult a lawyer in their home country or here in Mexico regarding their will.
A will can cover everything or only specific things. If you have more than one will, each should refer to the other and each should be explicit about what it does and does not cover. For example, if you have a will going back 20 years in the U. S. or Canada that covers personal possessions (e.g. jewelry), investments (e.g. bank certificates of deposit) or land (e.g. a cottage and undeveloped lakefront property) outside of Mexico, that will may be left intact. If you moved to Mexico 4 years ago and used some of your investment capital to purchase and furnish a house, and have bought a vehicle and art here, you may want to prepare a will that deals only with your possessions here in Mexico. Each will should refer to the other. The one from “back home” should explicitly exclude all assets physically located in Mexico. The one from Mexico should explicitly exclude all assets outside of Mexico. In that way, executors can avoid international probate complexities and costs, and each jurisdiction can quickly settle each will.
A will in Mexico may be drafted by a lawyer, but it must be formally signed by a Norary. It must be written in Spanish.
In Jalisco and some other states it is possible to name beneficiaries on a property deed as long as they are in direct line of descent (i.e. mother, father, children) of the owner(s). The Notary will ask if you have beneficiaries you want to name on the deed. If you have other properties that you would like to leave to other beneficiaries they have to be named in a will. If no beneficiaries are named on the deed, the owner’s will takes precedence in allocating assets.
Formal Contract Law in Mexico is similar to that in Canada and the United States. A contract should be in writing. However, the Mexican legal system recognizes that many business transactions are oral, and supports the enforcement of contracts that are made at that level. An agreement between the parties, with two witnesses, is sufficient to establish a contract.
Before engaging domestic help (or agreeing to inherit help from a previous owner), familiarize yourself with your obligations as an employer, especially regarding termination pay and the Christmas bonus (aguinaldo). If you hire a maid or gardener, even if only on a part-time basis, then decide after 6 months that their work is not up to your standard, you must pay the legal severance required or they will have the right to sue for their severance. Similarly, if you purchase a house and accept the gardener who was employed by the previous owner(s), you may be liable for all the years of his employment at that address should you decide to terminate his employment after a few months. There is a statutory Christmas bonus requirement in Mexican Employment Law to which all employers must adhere. There are no exceptions.
Most foreigners living in Mexico spend many years here without encountering any legal problems. In Mexico, resolving a dispute through negotiation is almost always preferable to litigation. Mexicans are willing to negotiate almost everything, so don’t hesitate to open a conversation. If you happen to be unfortunate enough to require legal assistance, a strong system is in place and trained professionals are available.