Wills and Death
Last Update 12 August 2012
First, I am not a lawyer and what follows is not legal advice; rather it is just some things to think about and discuss with a lawyer in your home country and another lawyer in México. If you have possessions in your home country and in México, you will want to have two wills -- one for each country. México, like most other countries, has reciprocal agreements to honor wills from other countries. However, the paperwork required to use a foreign will in México is so onerous that separate wills are the best.
It is customary for a will to include a clause that cancels any other prior wills; you need to modify that clause to acknowledge the validity of a will in the other country.
In México, a will can be prepared only by a Notario. a regular lawyer cannot prepare a will although s/he can be named as executor.
You can will property to a Mexican citizen, including your car. But the recipient cannot keep your foreign car in México.
If you die in México, your family or the executor of your will must contact the nearest consulate of your home country to make arrangements to convert the Mexican death certificate into one valid in your home country.
USA Citizen: Your family or the executor will need a Mexican death certificate to be taken (in person, not mailed) to the nearest consulate along with your passport and Social Security card if you are receiving social security. The consulate can notify SS to cancel your checks. Some consulates can prepare the USA death certificate while you wait; others are not equipped to do that, so there may be a delay of some days. The consulate can mail the certificate to to your representative. Most consulates require an appointment for services; walk-ins are usually refused. You can find additional USA information here.
You can be buried or cremated in México, or your body can be returned to your home country at a substantial cost. All cemeteries in México are public; there are no church cemeteries -- it's part of the Mexican Constitution that places some restrictions on religious organizations. Some cemeteries allow the pre-need purchase of a burial plot (I have bought mine); others assign plots in the order of need. Some cremation services offer a pre-paid plan.
In our digital age there are some important considerations that are not covered in conventional wills. Here are some things to consider and plan for. This information was compiled by a cyber friend in consolation with her attorney.
For those of you who have wills, it is my guess that virtually none of them reference digital assets. Until recently, lawyers weren't thinking about digital assets.
Our friend, an attorney, told us a horror story about a client whose husband had passed away without leaving behind his ID and password for their bank account. The bank would not grant his wife access and she had a devil of a time since her husband had gone paperless and was making online payments each month. She had no way of knowing when bills were due to pay them and she began racking up delinquent accounts as a result.
We've heard (many times) the problems with Facebook accounts when the owner dies. There have been parents desperate to know why their child committed suicide, wives who wanted to set up their deceased husband's page as a memorial and close relatives who wanted to take down the hate-filled postings of someone with a mental disorder who has died.
When we recently redid our own wills (a dismal task but usually good insurance of anything dreadful happening in the near future), we talked to our own attorney. We all collaborated on some research and here is the language we came up with for our Wills and Powers of Attorney.
POWERS OF ATTORNEY
To give the Agent power over digital assets:
Digital Assets. My Agent shall have
1) the power to access, use, and control my digital devices, including but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops for the purpose of accessing, modifying, deleting, controlling, or transferring my digital assets, and
2) the power to access, modify, delete, control, and transfer my digital assets, including but not limited to, my emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, banking accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts, and similar digital items which currently exist or may exist as technology develops, and (iii) the power to obtain, access, modify, delete, and control my passwords and other electronic credentials associated with my digital devices and digital assets described above.
(For greater emphasis to banks, include in the provision giving the Agent powers regarding financial accounts:)
3) the power to access, modify, delete, control, and transfer my digital financial accounts.
To give the Executor power to access/manage digital assets (or when using the alternate clause, to engage another named person to do so):
My Executor shall have the power to access, handle, distribute, and dispose of my digital assets, and the power to obtain, access, modify, delete, and control my passwords and other electronic credentials associated with my digital devices and digital assets.
[Alternate: I authorize my Executor to engage to assist in accessing, handling, distributing, and disposing of my digital assets.]
If I have prepared a memorandum, which may be altered by me from time to time, with instructions concerning my digital assets and their access, handling, distribution, and disposition, I direct my Executor and beneficiaries to follow my instructions as outlined in that memorandum. Digital assets includes the following:
(1) Files stored on my digital devices, including but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops; and
(2) Emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, banking accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts, and similar digital items which currently exist or may exist as technology develops, regardless of the ownership of the physical device upon which the digital item is stored.
SAMPLE DIGITAL ASSETS MEMORANDUM
In order to assist your Agent and/or Executor, please use this space to give instructions and necessary information regarding your digital assets, including usernames, passwords, PINs, etc. (or the location of such information if stored separately) and instructions on how they should be handled.
DIGITAL DEVICES (computers, tablets, smartphones, etc.):
Prepare somolar instructions for these assets/accounts:
SOCIAL NETWORKING (Facebook, Twitter, etc.):
ONLINE BANKING/FINANCIAL ACCOUNTS:
ONLINE MEDIA ACCOUNTS (music, photos, etc.):
OTHER DIGITAL ASSETS