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The Importance of Getting Your Affairs in Order
A majority of foreign nationals living in México have well thought out wills and trusts that they had prepared in their home country. They carefully reviewed their assets with an estate attorney and had the necessary documents prepared to dispose of those assets in a manner of their choosing upon their death.
Although probably not verbalized, their assumption and the assumption upon which those documents were prepared, was that their death would occur at “home.” Fast forward to today and now México is their “home” at least for a part of each year.
With that in mind, if a foreign national spends several months out of the year in México, pure statistics say there is a chance of his death happening in México. The more months the foreign national resides in México each year, those odds increase. It seems, therefore, not only logical, but wise, for foreign nationals living in México to plan for possibility that their death may occur in México.
The information provided in this book is not legal advice. Its purpose is to raise fact situations that may apply to the reader or someone he or she knows. It discusses how those facts may dictate a course of action that may not be of the person’s choosing; suggests some planning ideas a foreign national may want to consider; and initiates discussions and raises questions. Since México’s thirty-two states do not all have the same laws, your questions should be answered by a local attorney or Notario.
Just as you may have done in your home country, in México you may wish to dictate the level of medical care during your last illness, if that occurs in México; address issues that may arise during your last days; and be sure that your assets in México pass in the way you want. And, just as importantly, you want your loved ones to go through the least amount of consternation and anxiety as possible, as they are left with the chore of settling your estate.
For those who have had a loved one predeceased them, you know the myriad of information that must be gathered and the decisions that must be made within a short period of time following the loved one’s death. This is hardly the time to be searching for needed information or making difficult decisions when all kinds of emotions are at play. So, the first thing you should do is follow the idiom and get your [proverbial] “ducks in a row.
CHAPTER 2
Death in México: Protocols and Procedures
An important consideration as you contemplate your possible death in México is what to do with your remains. In México, foreign nationals have four options: local burial, preparation of remains and air shipment to your home country, cremation and local disposition of ashes, or cremation and air shipment of ashes to his home country.
You should be the one to make that decision; it ought not to be left to your surviving loved ones. This decision should be added to the Letter of Instruction.
Time Constraints:
In México there is no specified period of time following the death of person for the spouse or next-of-kin to decide how the remains are to be handled and to implement that decision, if the body is embalmed and a refrigerated room is available. However, refrigerated rooms are not always available and then the time to make and implement a decision varies from city to city. You should obtain the number of days applicable in your city from your Consular Agent or local authorities. Embalming must occur with twenty-four hours following death, if interment has not occurred.
Cremation and Exportation of Physical Remains:
Local laws permit cremation, if requested by the surviving spouse or next-of-kin, who must present the necessity cremation paperwork. Local funeral homes must obtain the following paperwork in order to export the physical remains: Mexican death certificate, permit from the Health Department, and embalming permit. Upon reaching the port of entry of the home country the person traveling with the physical remains must present these documents.
CHAPTER 6
Is a Will Prepared in a Foreign Country Valid in México?
If a foreign national has a valid will that was prepared in a foreign country, that will is valid in México. However, the process of getting a foreign will recognized in México can be a lengthy and expensive one. As commerce between the nations of the world became an everyday occurrence, there was the necessity of establishing a single procedure for recognizing a legal document prepared in one country that needed to be enforced in another country.
In 1961 a treaty known as The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, the Apostille Convention, or the Apostille Treaty was agreed to and signed by the participating countries. The certification of a document under the terms of the convention is called an apostille (from Latin post illa; a marginal note).
An apostille is similar to the notarization of a document and supplements a local notarization of the document. If both countries that are involved with a given document are parties to The Hague Convention, an apostille is sufficient to certify a document's validity. This negates the old requirement for double-certification by the originating country and then by the receiving country.
To be eligible for an apostille, a document must first be issued or certified by an officer recognized by the authority that will issue the apostille, e.g., Secretary of State, the Office of Vital Records, etc.
The United States and most European countries are parties to the 1961 Apostille Treaty, while Canada is not. In order for a Canadian will to be recognized in México, it must be certified by the Deputy Minister of Foreign Affairs in Ottawa or by a Canadian consular official in México and subsequently certified by the relevant government office or Consulate of México.
It is probably apparent that having a will that was prepared in a foreign country recognized in México can be both time-consuming and expensive.
CHAPTER 13
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