Understanding Court Probate and Notarial Probate in Mexico
Antonio Maldonado
When dealing with the transfer of assets after someone's death, the probate process plays a vital role in Mexico, as it does in many other jurisdictions. However, Mexico offers two distinct methods for administering an estate: court probate and notarial probate. Understanding the differences between the two can help in making an informed choice during what is usually a challenging time.
Court Probate
A court probate (juicio sucesorio) is the traditional form of estate administration in Mexico. It involves a formal legal proceeding filed with the Mexican court with jurisdiction over the decedent’s last domicile or, in some instances, where decedent’s real property is located. The process starts by the filing by an heir, or other person with a legal interest, of a petition for probate (denuncia de juicio sucesorio) along with certain documentation such as decedent’s death certificate, will (if any), and when there is no will the proof of the family relationship with decedent, such as marriage and birth certificates.
A court probate is required if there is any dispute between the heirs, when a will is contested, when any of the heirs are minors, when the collection and marshaling of estate assets requires court intervention, and when there is a foreign will.
Notarial Probate
A notarial probate is a streamlined probate process administered by a Mexican notary public, bypassing court involvement. The notary certifies the validity of the will after publications are made and searches are performed with the local state notarial archive and Public Registry of Property for any other wills that may have been made by the decedent. The notary also recognizes the appointment of a personal representative (albacea) and the acceptance by the heirs of their inheritance rights to the estate. The notary then certifies the inventory prepared by the personal representative, the administration of the assets by the personal representative, and their distribution to the heirs.
A Mexican notary public will charge fees that would not be incurred in a court probate. But these are usually substantially less than the attorneys fees that would be incurred in a court probate. Also, a notarial probate is generally quicker to be completed than a court probate. And a notarial probate may offer a certain level of privacy that is not available in a court probate.
The choice between court probate and notarial probate largely depends on the complexity of the probate and the level of agreement among the heirs. Court probate offers a robust process that can handle complex scenarios and disputes but comes at the cost of time and money. On the other hand, a notarial probate is quicker and less costly but is only suited for straightforward situations where all parties are in agreement.
Understanding these nuances can make the tough job of figuring out how to start an estate administration in Mexico a bit easier.
Learn about what Maldonado Myers LLP could do for you in a US-Mexico cross-border probate here.
Copyright 2023 by Antonio Maldonado, Maldonado Myers LLP