September is the month of the will in Mexico. This government
campaign seeks to promote the granting of wills and contribute to a culture of
prevention, certainty and legal safety in the right to inherit. Granting a will has many advantages, we
inherit peace of mind to our loved ones, greater expenses are avoided, as well
as the waste of time and family issues. If there is a will, there is no need
for an intestate succession proceeding that can be long and complicated.
But what happens when
someone dies and he/she made no will? In this case, who are entitled to inherit?
If there is no will, a proceeding must be brought before civil
courts known as intestate succession or legitimate succession, in which the
judge will determine who is entitled to inherit, and at the end will grant
heirs with ownership over the property.
If there is no controversy among the possible heirs, it is a fast
and simple proceeding, however, in case there is, then it turns into a slow and
complicated process. Therefore granting a will offers great advantages, since
it reduces problems and family disputes.
When there is no will, Mexican civil laws establish that
descendants, the spouse, ascendants, collateral relatives in fourth degree, and
in certain cases concubines can be heirs. Kinship by affinity, this is in-laws,
does not give the right to inherit. If there are no relatives, then public
assistance shall be heir.
However, it does not mean that those described above can be heirs
at the same time, because to determine who has a better right to inherit, there
is a general rule for the institution of heirs, which consists in closer
relatives excluding remoter ones. This rule gives preference to relatives
closer in degree, and eliminates the right of remoter ones. For example, a child excludes a grandchild, a
brother excludes a nephew, father excludes grandfather, etc.
In a hypothetical case, let´s say that Mr. Juan Perez is married
and has three children, he also has two siblings and his parents are still
alive. If Mr. Perez dies and leaves no
will, those entitled to inherit would be his children and wife, all in equal
parts. His siblings and parents cannot be heirs because his children and wife
are the closest relatives and exclude the remote ones.
Now, let´s say that Mr. Perez was single with no children, had two
siblings, as well as his father and mother and his grandparents are still
alive. In this case, his parents would
be heirs in equal parts since they are the closest relatives, excluding his
siblings and grandparents.
There can be different cases, where there are siblings and half
siblings; concubine and children; siblings and nephews and nieces; etc. The Mexican
Civil Code and jurisprudence establish the solution to determine who has better
right to inherit and in which parts, always applying the mentioned closeness
rule.
In the next entries of this legal blog we will discuss other
topics related to successions and inheritances.
