The Importance of Designating Successor Trust Beneficiaries in Real Estate Management Trusts

January 12, 2014
The Importance of Designating Successor Trust Beneficiaries in Real Estate Management Trusts

There exist many trusts in Mexico that were created in order for foreigners to acquire and own real estate in therestricted zone (a strip of 50 kilometers – approximately 31 miles – along the coast, or 100 kilometers -approximately 62 miles – from the border). In any of these situations, a foreigner contracts a Mexican bank (the“Trustee”), so that real estate is transferred to the trust and the foreigner, in his/her capacity as trust beneficiary,has the right to use and enjoy the real property. If the trust was duly structured and formalized, the foreigner, astrust beneficiary, shall designate successor trust beneficiaries, meaning that he/she will name the person orpersons who will replace him or her in the event of death. In the event of death, the designated successor(s) willsubstitute the trust beneficiary, without the need for a will in Mexico, and, irrespective of the provisions of thesame, if any, upon only the presentation of the death certificate of the foreign person, the identificationcredentials of the successor beneficiary, among other limited items, and upon payment for and formalization ofthe required trust amendment documents and payment of taxes that are necessary for documenting the transfer ofthe beneficial rights in and to the trust.A problem arises when, due to lack of appropriate advice or for any other reason, the trust does not include thedesignation of a substitute beneficiary and the foreign person does not have a will in Mexico, which is usually thecase, being that his/her permanent residence is not in Mexico. In such case, the heirs are confronted with theobstacle that the Trustee requires a judicial order from a Mexican judge that indicates the identity of the heir(s) ofthe trust beneficiary who is entitled to receive the benefits and rights of the trust beneficiary. In order to obtainsuch, the heirs would first need to probate the will in the corresponding jurisdiction, which is generally not inMexico, and, once the probate is finalized, the competent authority will issue a judicial order, the same whichwill designate the heir(s) that inherit the property and rights belonging to the decedent’s estate, which shallinclude the rights with respect to the Mexico trust. After the procedure outside of Mexico is completed, then the heirs will need to request the judge in the probate jurisdiction to issue a request or letter rogatory requesting aMexican judge (normally from the jurisdiction where the property is located) to recognize the probate designationof heirs and to order the Trustee to transfer the trust beneficiary interest to the heirs. Once such order or letterrogatory is obtained, the heirs will need to hire a Mexican lawyer to follow up on the letter rogatory process andto request the Mexican judge to issue the order. However, the Mexican judge will have to review the order andprobate process to be sure that it complies with Mexican public policy and that such request is enforceable. Ifthese steps are followed and there are no issues, then the Mexican judge will issue an order to the Trustee torecognize the new trust beneficiary or beneficiaries.Given the foregoing, it is of utmost importance that Mexico real estate trusts owned by foreign individualscontain a designation of a successor trust beneficiary, in order to avoid the potentially expensive and lengthyjudicial procedures to designate a successor trust beneficiary.

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