The Dual-Will Strategy for Canadian Foreign Property Owners

Yes — a Canadian will is insufficient to govern the succession of Mexican real property without a local Mexican will. Mexico applies the lex situs principle: real property located in Mexico passes according to Mexican law. Your Canadian will may be theoretically recognizable in Mexico through an international recognition process, but this process is slow, expensive, and uncertain in outcome. In practice, the estate administration for a Canadian who dies with only a Canadian will and Mexican property will involve: (1) Obtaining probate of the Canadian will in your home province. (2) Having the probated Canadian will authenticated and apostilled (now simpler since Canada joined the Hague Apostille Convention in January 2024). (3) Having the apostilled Canadian probate judgment recognized by a Mexican court in a proceeding called exequatur. (4) Only after the exequatur proceeding is complete — which can take 6–18 months and cost USD $3,000–$8,000 in legal fees — can the Mexican succession proceed. Compare this to what happens with a Mexican will: your heirs present the Mexican will to the Mexican notario and court, an executor is appointed, and the property transfers in 3–6 months with minimal legal cost. The cost of a Mexican will (USD $500–$1,500) is a fraction of the cost savings it provides for your heirs at the time of succession. The recommendation is unambiguous: any Canadian who owns Mexican property should have a Mexican will.

The dual-will strategy requires explicit scoping and drafting coordination to prevent contradiction: (1) Each will should contain language explicitly limiting its scope to specific assets. The Mexican will should state: 'This will governs only my real property and personal property located in Mexico.' The Canadian will should state: 'This will governs all my assets except real property located in Mexico, which is governed by my separate Mexican will.' (2) Neither will should contain a broad general revocation clause ('I hereby revoke all former wills') without an exception for the other country's will. The safer formulation: 'I hereby revoke all former wills executed under Canadian law' — specifically limiting the revocation to Canadian law wills. (3) The Mexican will should be drafted by a Mexican notario public who is informed that a Canadian will exists. The Canadian will should be updated by your Canadian estate lawyer who is informed that a Mexican will exists. Both professionals need to coordinate the scoping language. (4) If you update either will in the future (new beneficiaries, changed relationships, additional assets), ensure the updated will is still properly scoped and does not inadvertently affect the other jurisdiction's document. (5) Store copies of both wills securely — both in Canada (with your Canadian estate lawyer and in a safe deposit box) and in Mexico (entered in the Mexican national will registry by the notario). Your heirs should know both wills exist and where to locate them.

A fideicomiso (bank trust) is the legal structure required for foreign ownership of property in Mexico's restricted zone (within 50km of the coast and 100km of a border). In a fideicomiso, a Mexican bank holds legal title to your property as trustee, while you retain all beneficial rights (the right to use, rent, renovate, sell, or transfer the property). The fideicomiso document includes provisions for naming substitute beneficiaries — persons who inherit your beneficial interest in the fideicomiso upon your death. The key distinction from a will: the fideicomiso beneficiary designation operates as a right-of-survivorship mechanism, similar to a jointly held account with right of survivorship or a designated beneficiary on an RRSP. When you die, the substitute beneficiaries file the death certificate with the trustee bank and the property transfers directly to them — bypassing the Mexican court system entirely. This is significantly faster and cheaper than even a properly executed Mexican will, because the transfer does not require court involvement. Why you still need a Mexican will even with fideicomiso beneficiaries: (1) Not all Mexican property is held in a fideicomiso. Inland properties (Mérida, San Miguel, Lake Chapala) do not require fideicomiso — they are owned directly (escritura pública). For these properties, a Mexican will governs succession. (2) Your other Mexican assets (vehicles, bank accounts, personal property) are not covered by the fideicomiso beneficiary designation. (3) The fideicomiso beneficiary designation must be kept current — if your intended heirs change (death, divorce, estrangement), the designation must be updated at the bank. A Mexican will addresses the same scenarios. The complete Mexican estate plan for a Canadian property owner: fideicomiso with named substitute beneficiaries for each coastal property + a Mexican will covering all other Mexican assets and non-fideicomiso property.

Forced heirship (réserve héréditaire in France, legítima in Spain/Portugal, quota di legittima in Italy) is a civil law concept that limits testamentary freedom by guaranteeing minimum inheritance shares to certain family members — primarily children and spouses — regardless of what the will says. France: the réserve héréditaire guarantees the following minimum shares: one child = 50% of the estate. Two children = 66.7% (each gets 33.3%). Three or more children = 75% (split equally). The portion you can freely dispose of (quotité disponible) is only 25% when you have three or more children. If you plan to leave your French property primarily to your partner (who is not a French spouse), or to charity, or to one child over another, forced heirship will override your plan to the extent of the protected shares. Portugal: the legítima protects the spouse and descendants (or ascendants if no descendants). The protected quota is 50–66% depending on family composition. Portuguese inheritance tax is zero for direct family — but that does not mean there is no forced heirship. Spain: the legítima protects descendants (2/3 of the Spanish estate — 1/3 for the strict legítima and 1/3 for the mejora, which can be distributed unevenly among children) and, in some circumstances, parents. Only 1/3 of the Spanish estate (the free portion — tercio de libre disposición) can be freely willed to anyone you choose. Italy: the quota di legittima protects spouses and direct descendants. The reserved portions range from 25% (one child, no spouse) to 50% (one child + spouse) to 75% (two or more children). The Brussels IV Regulation solution: for property in EU member states, EU Regulation 650/2012 allows you to elect to have your estate governed by the law of your nationality (Canadian law) rather than the law of your habitual residence at death. Canada does not have forced heirship — Canadian law allows complete testamentary freedom. Making the Brussels IV nationality election in your will can override the forced heirship rules of France, Portugal, Spain, and Italy for EU-sited property. This election must be made explicitly in your will and applies to your entire estate in that country.

Without a Mexican will (and without fideicomiso beneficiary designations for coastal property), your Mexican real property enters Mexican intestate succession — a court process that can take 1–3 years. The process: (1) A death certificate must be registered with the Mexican civil registry, translated and apostilled if obtained from a Canadian province. (2) Your heirs must petition the Mexican Juzgado Familiar (Family Court) to open an intestate succession proceeding. A Mexican attorney is required. (3) All legal heirs must be identified and notified — this may require locating family members and serving legal notice internationally. (4) An executor (albacea) is appointed by the court. (5) An inventory of Mexican assets is prepared and authenticated. (6) The court issues an order distributing the assets according to Mexican intestate law. Mexican intestate succession order: spouse first, then children (equally), then parents, then siblings. If you intended to leave your Mexican property to a partner who is not your legal spouse, or to a specific child while excluding others, or to anyone outside the statutory inheritance order, intestate succession will not honour your intentions. The costs: USD $3,000–$8,000 in Mexican attorney fees for a straightforward case; up to USD $15,000–$25,000 if there are disputed heirs or complex assets. The time: 12–36 months in most cases. The disruption to your heirs: the property cannot be sold, rented, or transferred during the proceedings. If your heirs were counting on selling the property to pay for your funeral or estate costs, this delay can create genuine financial hardship. For the cost of a Mexican will (USD $500–$1,500), this entire proceeding is avoided.

A Mexican will (testamento público abierto) is prepared and executed by a notario público — a government-appointed legal professional with significantly higher qualifications than a Canadian notary public. Mexican notarios handle property transfers, company formations, wills, and virtually all formal legal transactions. The process: (1) You meet with a notario público in the Mexican city where you own property or have residency. Most major cities have dozens of notario offices; your real estate agent, property manager, or expat community contacts can provide referrals. (2) You provide the notario with: your passport, your Mexican residency card (if applicable), details of your Mexican assets, your intended beneficiaries' names and relationship to you, and any specific wishes for property distribution. (3) The notario prepares the will document in Spanish. An interpreter may be present if you are not fluent. The will is read aloud to you in the presence of two witnesses, and you sign in their presence and that of the notario. (4) The notario registers the will with the Registro Nacional de Avisos de Testamentos (RENAVM) — Mexico's national will registry. This registration is critically important because it ensures your heirs can locate the will when needed. (5) You receive copies; the original is retained by the notario. Cost range: USD $400–$1,500 depending on the notario, the complexity of your assets, whether interpretation services are needed, and the city. In Puerto Vallarta, a simple will for a Canadian property owner typically costs $500–$800 USD. In Mexico City, Guadalajara, or Mérida, costs may be at the lower end. The cost is fixed by government-regulated fee schedules; most notarios do not significantly exceed these. For Canadians with both a fideicomiso coastal property and inland properties or other Mexican assets, both the fideicomiso beneficiary update and a comprehensive Mexican will should be done simultaneously.