Explaining legal terms sometimes seems like trying to translate the entire four original volumes of William Blackstone’s hugely famed “Commentaries on English Law” (1770) into a familiar language.
One of these troubling, if rudimentary, terms, “apostille,” seems to especially, and mercilessly, harry foreigners in Mexico. This is due to the reality that they’ve never heard of it, and such facts as: 1) many foreigners, both residents and tourists, purchase property (usually a home) here, and then, 2) somewhere along the way, it appropriately dawns on them that NOW would be a wise time to find a way to pass along this new asset to their heirs — just in case. All documents that do this — wills, deeds and bank trusts — concerning any property in Mexico must be written in Spanish to fit the requirements of Mexican law.
Sounds so logical and obvious that it comes close to falling into the mental basket labelled “Oh, yeah,” and immediately forgotten. Which can make the slinky, lightly known and often overlooked apostille a land mine.
An apostille (a term used internationally by all countries that have signed the Hague Convention, 1961) is a seal applied by authorized government entities (in the United States, by a state government) certifying that a document is a true copy of an original. A crucial detail for foreigners owning property in Mexico.
The beneficiaries of foreigners residing here, full- or part-time, most often live outside of Mexico, which means that foreign documents (i.e. wills, proof of identification, power of attorney, and death certificates, etc.) will need to be verified sometime in the future. Actuarial tables warn us of this.
At some point such beneficiaries should be informed (possibly in the “letter of intent” attached to the will) that in case of the owner’s death, possession of the items cited for inheritance can be dealt with most efficiently, less puzzlingly and less expensively if the beneficiaries come to Mexico to facilitate of the process of fulfilling the desires of the deceased.
That may sound simple at first glance. But, often, it isn’t. Humans being what they are, and bureaucracies being what they are — frequently at odds — confusion and obstinacy seem to thrive. They are widely, bemusedly noticed by lawyers, notaries, and others whose work brings them close contact with such stuff as documents requiring apostilles.For one thing, the entire matter of wills, deeds and bank trusts often tend to foster a logic-killing jungle of contradictory — and well-hidden — emotions. Many people of certain age are reluctant to concede that their children, nieces, nephews and grandchildren, for instance, are human beings prone to veiled human flaws. From the time they are small kids they live lives kept a secret from adults. We all know this from our own youthful experiences, as do even those parents who insist on their offspring’s innocence. Of course today, the evidence possessed by the “social network” tends to reveal those secret lives more readily than in the past.
People we’ve known for years will their assets – money, paintings, over-priced vehicles, heirlooms, homes and other valuable property – to ethically challenged individuals they somehow deem “deserving,” but who quickly prove to be ... well, something else. In good part, this situation should not astound serious and experienced folks among us. It’s more or less what we talk about when we use the well-worn cliché, “public face versus the private face.” Some assessments are clichés precisely because they are so frequently accurate.
People whose work deals such bumpy truths signaled by death certificates, bank trusts, wills and such, often rather weariedly note: “They won’t come to Mexico when their relatives are sick and dying, but as soon as they’re dead, they’ll be on their computer or phone about the money, the property, the valuables.”
That seems a harsh, brutally cynical assessment. But nowadays lawyers, notaries, health-care providers, even close friends concede such words are too often accurate. That said, others maintain that exactly because such a remark leaves many aghast must mean that it’s really not that common.
The common denominator such situations do share are several legal matters including that of the mysterious apostille. Example: an elderly man, who had lived in Mexico for several years, returned to the United States when he fell ill with a heart problem and sought the succor of Medicare. Two years later he died. He owned six modest properties in Mexico, which he left to his three children in his Mexican (Spanish-language) bank trusts. An either prescient or lucky choice by the deceased. Bank trusts avoid the intricate and time-consuming Mexican probate process. And though a bank trust is initially more expensive than a direct deed, it allows one to apportion his/her property to anyone he/she wishes. In contrast, a direct deed limits dispersal of property only to a spouse and to those individuals who are “direct blood” relatives — offspring, brothers, sisters, not nieces, nephews, etc.
However, in this case, a bank trust did not rescue the process of transfer from a tangle of complication. During a telephone call to a friend of the deceased, one of his children said, “None of us got along with him well, and nobody’s going to want to come down there to deal with his stuff.” Red flag and visions of a plethora of apostilles. The deceased in his bank trust gave different properties to three different combinations of his offspring. The deceased’s lawyer quickly sent off an e-mail. “In order to consolidate the beneficiary clause regarding the properties of John Doe and transfer of property ownership to designated beneficiaries, the following documents are required:
1) Four certified and apostilled death certificates of “John Doe.” 2) Certified copies of public deeds for each property originally issued by a Mexican Notary Public. 3) Two certified and apostilled birth certificates for each beneficiary. 4) The lawyer advised the three descendants to go before the nearest Mexican Consulate or Mexican Notary Public to issue a Power of Attorney to someone in Mexico who could represent them and be able to sign the proper permits and documents before “the competent Mexican authorities.” 5) Copies of the Predial (land tax) paid for 2012 for all properties cited. 6) If the descendants do not wish to issue a Power of Attorney to someone here, all relevant documents would be sent to them for their certified signatures and be returned by messenger service. “It would be necessary for them to come to Mexico to prove some kind of legal status and ratify their signatures of registry petition before a Mexican Notary Public.”
The lawyer also noted “that to start this process the first step would be to obtain an appraisal of the current value of the properties, so as to determine the lowest transfer value in order to pay the lowest tax and transfer costs possible.”
The attorney went on about the cost of property appraisals, of permits, municipal tax, translations, and about a six-month time frame, all of which will move or not move forward based on the presence or absence of a flock of embossed apostilles.