Wills and Inheritance in San Miguel de Allende : What Happens to the House When a Foreign Owner Dies

When a foreigner who owns a house in San Miguel de Allende dies, the house passes under the succession law of Guanajuato, through a succession proceeding, the Mexican equivalent of probate. A San Miguel owner cannot route around that as a coastal owner can, because San Miguel owners hold direct title, not a bank trust with a named substitute beneficiary. What an owner controls is which kind of proceeding it is. With a Mexican will made before a notario, and adult heirs who agree, a notario handles the succession without a court. With only a foreign will, or none, it goes before a Guanajuato judge.

Why the usual advice does not fit San Miguel

Nearly everything that ranks for “do I need a Mexican will” was written by coastal law firms and brokerages for owners inside the restricted zone. Those owners hold through a fideicomiso: a Mexican bank holds title as trustee, the owner is the beneficiary, and the trust names substitutes. A Los Cabos practice describes an owner’s death plainly: the substitute takes the death certificate to the bank, asks to be recognised, and “no probate is necessary”. For those readers the Mexican will is a backstop for everything outside the trust.

San Miguel owners have no trust. As our page on owning without a fideicomiso explains, the municipality of Allende lies wholly outside the restricted zone, so foreigners take fee-simple title in their own names. And under Article 13 of the Código Civil para el Estado de Guanajuato, real property in the state is governed by that Code whoever owns it. The house therefore moves only through a Guanajuato succession, testamentaria if there is a will, intestamentaria if not. For a coastal owner the Mexican will is a supplement. For a San Miguel owner it is the main instrument.

Do I need a Mexican will?

Not legally. Article 2538 provides for inheritance by will or, failing one, by law. The case for a Mexican will rests on Article 671 of the Guanajuato Code of Civil Procedure, which lets a testamentaria run extrajudicially, before a notario, when every heir is an adult, the heirs were instituted in a testamento público, and nobody disputes it. The testamentos públicos the Civil Code recognises are made before a Mexican notario. A will signed before a lawyer in Toronto or Texas is not one, and we found nothing in the state code that lets it use the notarial route directly. An intestate estate reaches a notario only after a judge has declared the heirs (Article 675).

So the real choice is between a notario’s office and a courtroom, and it matters most when the heirs live abroad. Article 592 holds the first court meeting of heirs within eight days of the summons where most of them live locally, and otherwise leaves the judge to set a longer period “atendidas las distancias”, in view of the distances.

Direct title with a will, without one, and a coastal trust compared

A San Miguel owner could still create a trust, which Article 381 of the Ley General de Títulos y Operaciones de Crédito allows for any lawful purpose. It brings back the bank’s fee, and under Article 41 fracción VII of Guanajuato’s municipal fiscal law, naming a beneficiary other than yourself is itself a taxable acquisition.

What kinds of Mexican will are there in Guanajuato?

Article 2756 lists four ordinary forms. The special forms in Article 2757, private, military, maritime and made abroad, apply only in narrow circumstances.

Anyone of sixteen or over and of sound mind can make a will (Article 2562), but two people cannot share one (Article 2552), so a couple needs two. The notario reports each public will to the property registry within five business days, and the registry discloses it only to a court or to the notario handling the succession (Article 2764); nationally, the state offices check the Registro Nacional de Avisos de Testamento, RENAT (national procedural code, Article 806). Neither is a public search, so tell your heirs which notario holds your will.

The simplified will: the nearest thing to a beneficiary designation

Article 2804-A may be the most useful provision on this page for a buyer. A testamento público simplificado is made in the same escritura that records the acquisition. The buyer names one or more legatees for the property, who share it with a right of accretion unless substitutes are named, and who may claim it directly. Each co-owner may name legatees for their own share, and spouses under a community-property regime may do so in the same instrument, the one exception to the ban on joint wills. Guanajuato’s article sets no value ceiling, unlike the Mexico City version an International Bar Association guide describes.

It has two limits. On its text it can be made only in the deed of acquisition or a deed regularising title, so an existing owner cannot add one later. And it sends the legatees’ titling to a procedure the Guanajuato procedural code does not yet contain; the national code’s Article 810 supplies one, with a single publication and ten days for objections. If you are buying now, raise it with the notario before signing; our guide to the buying process covers the escritura itself.

Is a US or Canadian will valid in Mexico?

It can be recognised, not used as it stands. Its form is judged by the law of the place where it was made (Civil Code, Article 14), and Article 2757 lists a will made abroad as a recognised form, though the Code never says how it is handled. The substance, for the San Miguel house, is Guanajuato law under Article 13, so rules such as the duty to provide for dependants apply whatever the foreign will says.

Mexico’s national procedural code states the process. A will made abroad is declared valid by the competent court when it was made according to the law of the country where it was granted and does not contravene Mexican public order (Article 798), and that declaration is always a court matter; only then can the succession pass to a notario (Article 805). The exception is a testamento público abierto made before a Mexican consul acting as notary, whose testimonio is valid without legalisation. The national code must apply in Guanajuato by 1 April 2027 at the latest; a federal court ruling of 16 April 2026, recorded in a Guanajuato Congress file, notes that the state had not yet declared it in force. Until then the state code governs, and it offers the notarial route only for a testamento público.

The paperwork follows. Foreign public documents must meet federal requirements to take effect in Guanajuato (CPC Article 134). Mexico, the United States and Canada are all parties to the Hague Apostille Convention (Canada only since 11 January 2024), so an apostille from the issuing country replaces consular legalisation, as Mexico’s consular regulation requires (Article 86). Anything filed in a foreign language needs a Spanish translation (CPC Article 277). And a foreign probate order is no shortcut: a foreign judgment enters the Guanajuato property registry only once a Mexican court has ordered its execution (Civil Code, Article 2499).

One route avoids the validation step. Heads of Mexican consular offices may authorise testamentos públicos abiertos in their district for acts intended to take effect in Mexico (consular regulation, Article 87). The text does not confine this to Mexican nationals, but we could not confirm whether consulates make such wills for foreigners in practice.

Can a Mexican will and a home-country will cancel each other out?

Yes, and it is the most avoidable failure here. Under Article 2750, a later valid will revokes an earlier one by operation of law unless it says the earlier is to survive, in whole or in part, and the article does not distinguish wills made in Mexico from wills made abroad. Read on its face, a later home-country will with the usual clause revoking all previous wills could revoke the Mexican one, and a later Mexican will that is silent could revoke the home-country will as far as Guanajuato law reaches. We found no Guanajuato decision applying the article to a foreign will and do not predict one.

The common advice, as Yucatán Magazine summarised it in September 2026, is that each will should state that it governs only the assets in its own country, so that the two can coexist. Given Article 2750, each should also say in terms that it leaves the other in force. Article 2539 makes the split workable, since a testator may dispose of all or only part of their property. The corollary: anything in Mexico the Mexican will does not dispose of, a peso bank account left out of the drafting, for instance, falls into intestacy.

Substitute heirs and usufruct

A testator may name substitutes for an heir who dies first, or who cannot or will not accept (Article 2728). This is not a formality. A gift to an heir who dies before the testator lapses (Article 2753), and without a substitute that share goes by intestacy (Article 2838 fracción IV). Article 2543 covers the case every couple should consider: where the testator and an heir die in the same disaster or on the same day and the order cannot be established, both are treated as dying at once and nothing passes between them. For a couple who leave everything to each other, substitutes keep the house out of intestacy.

A testator cannot dictate a chain of owners. Article 2729 prohibits fideicomisaria substitutions, and Article 2738 treats bans on selling, and gifts of whatever remains when the heir dies, as prohibited. You choose who inherits from you, not who inherits from them.

Usufruct is the permitted way to provide for two generations. It is the right to enjoy another’s property (Article 1077), lifelong unless its title says otherwise (Article 1083), and it ends when its holder dies (Article 1135 fracción I). Article 2735 confirms that leaving ownership to one person and the usufruct to another is allowed: bare ownership to the children, the right to live in or let the house for life to a surviving partner. Acquirers of real rights, not only of ownership, are subject to acquisition tax (municipal fiscal law, Article 40), and how the San Miguel treasury values a usufruct is not published.

Corrected 8 October 2026: earlier versions of this page cited fracción III of Article 1135 for the end of a usufruct on its holder’s death. It is fracción I: “El usufructo se extingue: I. Por muerte del usufructuario”; fracción III is the condition set in the title. The table of will forms now also says that only adults may make a testamento ológrafo (Article 2806) and cites Article 2808 for the duplicate. Source: Código Civil para el Estado de Guanajuato, consolidated text of 18 December 2025, read 8 October 2026.

Who inherits if there is no will?

Kinship by marriage gives no right to inherit (Article 2842), so stepchildren and in-laws take nothing on an intestacy. And on the claim, repeated in English-language guidance, that Mexico imposes forced shares for children and spouses: Guanajuato does not. The only compulsory element is maintenance for those the testator must support (Article 2624). A will that omits it is inofficious but stands in every other respect, and the dependant receives only the pension (Articles 2630 and 2631).

How probate works in Guanajuato: notario or court

The court is a juez de partido (CPC Article 564) where the deceased was domiciled or, failing a domicile, where the property is (Article 30 fracción V).

In court, with a will. The judge calls the heirs to a meeting and, if nobody challenges the will, recognises them there (Articles 591 and 598). Adult heirs who agree can then ask for a summary adjudication, with inventory and partition signed by all, which the judge decrees within ten days and sends to a notario where there is real property (Articles 599-A and 616-A).

In court, with no will. A relative proves the relationship, witnesses confirm who the heirs are, and the judge declares them (Articles 600 to 605). Where only collateral relatives claim, public notices run forty days, extendable where relatives may live abroad (Article 608).

Before a notario. Where Article 671’s conditions are met, the notario first obtains the registry’s certified report on wills. The albacea and heirs appear with the death certificate and the will, accept the inheritance and recognise each other’s rights, and the notario publishes those declarations twice, ten days apart, in the Periódico Oficial del Estado (Article 672). Inventory and partition are recorded in the notario’s protocol. Any objection from a claimant or creditor stops the notario, who sends the matter to court (Article 674; Ley del Notariado, Article 91).

The albacea, the executor, is whoever the will names; otherwise the heirs elect one by a majority counted by the value of their shares (Articles 2920 and 2921), and a sole heir is the albacea automatically (Article 2924). The albacea must finish within one year of accepting, which the heirs may extend once by up to a year (Articles 2975 and 2976), and, where the will fixes no fee, is entitled to 2 per cent of the net estate (Article 2979).

While the succession is open, the house cannot simply be sold. The procedural code bars sales of inventoried property outside narrow cases (CPC Article 642), and where a sale is needed to pay debts or urgent expenses, the albacea makes it with the heirs’ agreement or, failing that, a judge’s approval (Civil Code, Article 2955).

Is there inheritance tax in Mexico?

There is no federal inheritance or estate tax. The Federation’s revenue law for 2026 lists every federal tax it expects to collect, and the line for taxes on wealth is budgeted at zero; a 2026 practitioner guide notes that a draft estate and gift tax bill has not been formally discussed. Three other charges are live.

Income tax, heirs who are Mexican tax residents. Article 93 fracción XXII of the Ley del Impuesto sobre la Renta exempts inheritances. The condition that is easy to miss: a resident whose total income for the year, exempt income included, exceeds 500,000 pesos must declare the inheritance in the annual return, and loses the exemption if it should have been declared and was not (Articles 93 and 150).

Income tax, heirs who are not Mexican tax residents. This is unresolved, and the stakes justify quoting the text. The Article 93 exemption sits in the part of the law that governs Mexican residents. The part governing non-residents contains, in Article 160, a paragraph taxing gratuitous acquisitions of Mexican real estate at 25 per cent of the total appraised value, without any deduction, with an exception only for gifts between spouses and from ascendants to direct-line descendants under Article 93 fracción XXIII. Inheritance is a gratuitous acquisition in ordinary legal usage, and it is not named in the exception. Two Mexican law firms, writing in the Chambers Private Wealth 2026 guide, read the provision as reaching inheritance. Most published guidance, including a 2026 article on a Mexican tax-filing platform, cites the Article 93 exemption and never reaches Article 160. We found no ruling or criterion from the tax authority, and did not analyse treaty relief. On a house appraised at 10,000,000 pesos, 25 per cent would be 2,500,000 pesos, so a non-resident heir should have the notario’s position in writing before the adjudication is signed.

Acquisition tax in San Miguel. Guanajuato’s new Ley Hacendaria Municipal, in force since 9 July 2026 in place of the 1989 municipal finance law, makes an acquisition on death subject to the municipal acquisition tax, ISAI (Article 41 fracción I). The base is the highest of the registered fiscal value, the transaction value and a certified appraisal (Article 42), which for an inheritance, with no price, leaves the fiscal value and an appraisal. The tax is due within thirty days of the instrument recording the transfer; the notario files it where there is an escritura, the heirs where the transfer comes from a court resolution (Articles 44 and 45). Article 338 first reduces the value, in every operation, by ten times the annual UMA: 427,946.40 pesos at the value in force from 1 February 2026.

San Miguel’s 2026 revenue law sets the rate. Article 50 charges 0.5 per cent on acquisitions by gift or inheritance between spouses or relatives in the direct line: children, grandchildren, parents, grandparents. Everyone else pays the ordinary tariff in Article 7, which rises from 2 per cent to 39,125 pesos plus 4 per cent of the value above 1,500,000 pesos. On the text of Article 50, a sibling, a niece or nephew, an unmarried partner and a friend all pay the ordinary tariff, even a partner who inherits as a spouse under Article 2873. Our arithmetic on those statutes, on round hypothetical values, in pesos:

We could not confirm how the San Miguel treasury applies the Article 338 reduction in practice; without it, a 10,000,000-peso house pays 50,000 or 379,125 pesos. Either way, the choice of heir moves the tax by a factor of about seven and a half. Our page on closing costs covers the same tariff on a purchase. Heirs who later split a plot between them owe no municipal division tax on inherited property (Article 47).

Selling inherited property in Mexico

Three things come before the sale.

Adjudication and registration. Until partition, the heirs hold the estate in common, and each can dispose of their right in it but not of the things in it (Articles 2544 and 2545). A partition involving real property must be made in an escritura (Article 3020) and registered, and has no effect against third parties until it is (Article 3031). An heir can sell their hereditary right sooner, but the co-heirs have fifteen days to match the offer, or, if they were not told, fifteen days from learning of the sale to take the buyer’s place (Articles 2548 to 2550).

The Foreign Ministry convenio. Article 10 A of the Ley de Inversión Extranjera applies to foreigners who intend to acquire property outside the restricted zone. It does not distinguish buying from inheriting, so on its text a foreign heir taking title files the same convenio as a buyer; our no-fideicomiso page covers it.

Agreement between heirs. No co-heir can be made to stay a co-owner, not even by the will (Article 3007). An indivisible house can go to one heir who pays the others, but a single heir’s request for a public auction is enough to require one (Article 3016). Siblings who disagree about keeping a house in San Miguel are not stuck with each other. They may be stuck with an auction.

Then the tax. Mexico gives no step-up in basis: under Article 124 of the income tax law, an heir takes the deceased’s acquisition cost and acquisition date. The gain runs from the price the deceased declared in their escritura, the building is depreciated at 3 per cent a year from the deceased’s purchase to a floor of 20 per cent, and the documents that prove the basis are the deceased’s. Whether the heir can also deduct the adjudication’s own costs, or the deceased’s improvements, the text we read does not settle (Article 121 fracciones II and III). Ask before the adjudication, not at the sale.

A non-resident heir then faces the choice set out in our page on capital gains tax in Mexico: 25 per cent of the gross price, or 35 per cent of the gain. With a basis that may be decades old, the gain can exceed the 71 per cent of the price above which the flat 25 per cent is cheaper.

What US and Canadian heirs must consider at home

Home-country treatment of the death, the inheritance and the later sale is outside this page’s research. For the sale, see our pages on US taxes when selling Mexican property and Canadian taxes on Mexican property. Take your adviser the deceased’s acquisition escritura, the adjudication escritura, the ISAI receipt and the appraisal behind it, any Mexican tax receipts, and the sale escritura.

What it costs, and how long it takes

The statutes fix many fees and time limits but no totals, and no official or independent source publishes a total for Guanajuato. MEXLAW, a Playa del Carmen firm that sells the service, says an intestate succession “may take up to two years”; the Guanajuato government, promoting wills, says they cut a succession’s cost and time “drásticamente”, without a figure. Neither is data.

The fee scale applies only where there is no contract (Article 2), so it is neither a cap nor a quote. On an estate whose only asset is a 10,000,000-peso house, fracción VII alone runs from 50,000 to 200,000 pesos before IVA. The campaign price sits under the scale’s floor, but the state bulletin addresses it to “las y los guanajuatenses” and does not mention IVA, and the federal campaign table shows only an asterisk for Guanajuato. Ask whether it applies to you.

A checklist for a San Miguel owner

Our guide for retirees buying in San Miguel places these steps in the context of a later-life purchase.

1. Make a testamento público abierto before a notario for your Mexican assets, naming an albacea and substitute heirs. It is the only document that opens the notarial route.
2. If you are buying now, ask about a testamento público simplificado in the purchase escritura (Article 2804-A). It is available only then.
3. Make each will say what it covers and that it leaves the other in force, and update them together (Article 2750).
4. Make two wills, not one. Couples cannot share a will (Article 2552).
5. If you are unmarried, make a will regardless. Your partner inherits on an intestacy only under the Article 2873 conditions, and pays the ordinary acquisition tariff either way.
6. Decide who inherits the house, not just the estate. A spouse, child or parent pays 0.5 per cent; a sibling, niece or friend pays the ordinary tariff.
7. Keep the purchase escritura, closing statement, ISAI receipt and every renovation factura with the will. Your heir’s tax basis is yours (Article 124).
8. Tell your heirs which notario holds the will. The registry will not tell them (Article 2764).
9. If your heirs are not Mexican tax residents, get the notario’s written view on Article 160 before anyone signs an adjudication.
10. Keep the predial current. Heirs take the estate with its charges, up to its value (Article 2540); see our page on property taxes.

What we could not source

• How long a Guanajuato succession takes, or what it costs in total. No official statistic exists; the figures in circulation come from firms that sell the service.
• Whether Article 160’s 25 per cent reaches non-resident heirs. No tax-authority ruling or criterion found; practitioners disagree or are silent.
• How the San Miguel treasury applies the Article 338 reduction, or values a usufruct.
• Whether Mexican consulates abroad make wills for non-Mexicans in practice.
• Whether the 3,500-peso campaign price includes IVA or is offered to foreign residents by San Miguel notarios.
• Any Guanajuato court decision applying Article 2750 to a foreign will.
• Whether an heir can deduct the adjudication’s costs, or the deceased’s improvements, on a later sale.
• The titling procedure for a simplified will under the procedural code now in force, and the cost of publishing in the Periódico Oficial.
• US or Canadian treatment of the death, the inheritance or the sale.

The standing disclaimer

This is published research, not legal or tax advice. The Guanajuato codes cited are the consolidated texts in force in September 2026, and the state procedural code will give way to the national code no later than 1 April 2027. A Guanajuato notario is the legal authority on your will and on your heirs’ succession, and your own tax adviser is the authority on your home-country position. If anything here conflicts with what a notario tells you about your circumstances, the notario is right and we are, at best, general.

Invest In San Miguel earns no commission and takes no referral fee. We have no stake in which notario you use, or in whether your heirs keep the house or sell it.