10 Jun Probate and Succession in Argentina
Probate and Succession in Argentina
Probate and succession in Argentina usually create some confusion. Below you can see some frequently asked questions. The replies are purely informative. If you require legal assistance on your particular Argentine probate case, we suggest you contact our law firm in order to obtain assistance by one of our experienced attorneys.
– What types of inheritances are there?
Argentina essentially abides by two types of probate procedures: The Sequential Testamentary Dispositions, and Successions Ab Intestato (without testament), as well as testamentary successions.
– What are the costs to start a succession?
To begin, the process usually involves a few general costs. In addition, it will help to have some documents available documents. For instance, birth, marriage, and death certificates, titles, deeds, etc. This will avoid paying to retrieve those documents.
There are other expenses, such as filing fees, division of properties and assets, appraisers, notary public, etc. They will depend on the value of the total net worth of the estate.
Attorney fees also depend on the specific case. The Succession Law in Argentina establishes a minimum and maximum rate all licensed and practicing lawyers can charge. The minimum is slightly less than 10%, while the maximum is thirty 30%.
Probate and Succession in Argentina
We usually offer a written “Attorney-Client Agreement.” By means of this legal instrument, our clients obtain the security and peace of mind for their probate cases. Our law firm can also offer you financing options. For example, we finance the costs of the probate process; we accept payments in installments from the beginning of the succession until the sale of the estate, if necessary. It is possible to deduct these costs at the moment of settling all assets.
– What is a Final Will and Testament?
A will or testament is a legal statement by which a person -the testator- appoints one person (or more) to manage their estate, and provides for the transfer of their property at death. There are several types of wills: written holographic will, sealed will, and public will.
Written Will: It is the simplest of all. The testator writes the statement in his/her handwriting, then signs and dates it in the presence of two or more witnesses. A notary public (escribano público) usually certifies the testator’s signature in order to avoid complications with the appointed heirs.
Public Will: The testament by public act requires the service of a Notary Public (escribano publico), in the presence of two witnesses. In general, it is the most expensive due to the required formalities, but it is also the safest at the same time.
Sealed Will: The Notary Public receives the closed in a sealed envelope in the presence of five witnesses. This formality provides a high level of privacy, but once opened, there may be problems as regards its compliance with the current Argentine civil law.
– Is it very common to draft a will?
In Argentina, most people do not plan ahead, and they do not fully consider the advantages of a last will. In fact, people with limited resources or assets may believe it is not necessary, or that it is very expensive. However, regardless of the reasons, it is very convenient to rely on a last will, especially when there are no heirs to an inheritance immediately in line. A will would be very useful in assisting to honor the final wishes of the deceased person.
What are the requirements for a testament to be valid?
Testators can change a testament as often as they wish. Then, they draft the final will and testament. First, two witnesses (or more) should attest it. Otherwise, a notary public needs to certify this document.
– What are the required documents to begin the probate process in a succession?
In general, a succession process requires the submission of official documents. For instance, the deceased person’s birth and death certificates. In addition, a marriage certificate if he/she was married. These records will also show who has the right to inherit. In the case of properties, deeds and titles are necessary too.
– How long does a succession in Argentina take to be fully probated?
Successions in Buenos Aires can technically take up to three months. However, this process can take longer in the rest of the provinces. It could be up to five months on average. It is very important to have the heirs’ cooperation in obtaining the necessary documents in order to complete the probate process as fast as possible.
– How do I know where to begin the succession? (Capital Federal (aka Ciudad Autónoma De Buenos Aires, The Greater Province of Buenos Aires, or the other provinces)
The court corresponding to the last residence of the deceased person is in charge of handling the succession process. The law takes into account the actual address, i.e., the last place where the person had his/her effective and habitual residence, or where he/she passed away. In addition, the location of any real property that belonged to the deceased person will apply as a valid jurisdiction to initiate the probate-estate case.
– Is it possible to find out if a deceased person owned an Estate before initiating the succession?
Indeed, before starting any succession process, an heir, or even an interested party –i.e. a proven creditor with sufficient title-, can find out if the deceased person owned real estate. It can also be certain movable property (for example, automobiles, ships, vessels, boats, planes, bank security boxes, etc.). The respective Real Estate Registry provides this information upon the formal request of the interested party. The request should also include the deceased person’s full name, ID number, and other basic information. This requires retaining legal representation from a licensed Argentine lawyer.
– Do foreigners, nonresidents, heirs living abroad, and local heirs have the same inheritance rights and duties?
Our law firm has extensive experience in this specific type of successions. Especially with foreigners and heirs living abroad, they may eventually fall in the classification of nonresidents, Mercosur or Non-Mercosur immigrants. This process can be even more complicated and difficult if you do not understand the language. Therefore, it is very convenient to hire an experienced succession and probate-estate Argentine lawyer, who can handle international successions as well.
Successions, estates, and probate cases in Argentina –as in the rest of the world- vary in nature if they involve foreigners, nonresidents, and heirs living abroad. Cases involving both local and foreign heirs are even more complex and sophisticated.
The main and most important difference is the tax burden on a foreign heir (from 17.5% up to 35% of all assets received in Buenos Aires, Argentina).
– How do I know who are the legitimate heirs in a succession?
In Argentina, the forced heirs are the primary lineal descendants and ascendants: children, parents’ grandchildren and grandparents, as well as the surviving spouse. There follow the siblings, nieces and/or nephews if the deceased person was never married nor had any children. These people have inheritance rights, even if a valid last will states otherwise. The law in Argentina classify these relatives as “Universal Heirs.”
– What is the “legitimate portion” in an inheritance?
It is the portion of the inheritance that, by law, belongs to the forced heirs. The testator can only have the percentage indicated by law given to a named individual without affecting the rightful portion of such heirs.
A widower with children has the right to half of the inheritance if there is a written will leaving assets to another individual. If both spouses are deceased, only the children have the right to 4/5 of the estate. This does not mean that the children would automatically receive 4/5 of everything, but just that the deceased person can only give away -by a written and formal will- 1/5 of his/her estate to someone outside the scope of the heirs’ universal right to inherit. This is the “disposable portion.”
Notwithstanding the above, any person has the right to dispose of their assets as they deem fit, even if they are married, or if they have children. However, these forced heirs may eventually make a legally valid claim. For example, a parent “donates” all of his/her assets to only one of his children, excluding all the others. This would generally not be accepted unless there are is a legal and valid reason to support this case.
– If the children and the spouse have a right to an estate, what portion does each inherit in the succession process?
In terms of succession, if there are children, half of the marital property is divided among them into equal parts. If there are no children and there is a living spouse, the ascendant inherits in the following manner: 50% corresponds to the spouse, and the other 50% is divided into equal parts between the spouse and the children. In this case, the spouse will inherit as another child over the other 50% percent remaining.
– What is considered to be property of the deceased person?
It is any type of asset owned before marriage, or those assets and all movable and immovable property (i.e. cars and real estate) received as inheritance, gift, or donation, during the marriage, as well as those owned even after divorce –if applicable and only to certain heirs as descendants and ascendants-.
– What is the definition of a cession for the rights of heirs?
It is a contract by which the holder of a part or the whole inheritance transfers to another heir its content property. This process is useful when certain heirs wish to sell their portion of the estate. It simply consists in assigning rights to someone else in exchange for value.
– What is the “Registration by abbreviated tract” mean? (commonly known in Spanish as: “Sucesion por tracto abreviado”)
An heir can request to the judge the “registration by abbreviated tract.” This step takes place when the heirs and the new buyers sign to buy a ticket of sale for the property that is in succession.
A duly authorized Notary Public can carry out this task. In other words, it bypasses all the heirs, and goes directly to a new purchaser, without having to put the property directly in the name of any heir when they intend to liquidate all existing assets.
This process can also avoid paying unnecessary taxes, and it speeds up the estate-probate process. In addition, there is no need to record the title since their rights are assigned to a third party willing to purchase the property.
– In Argentina, successions, probate cases, estates, wills, and testaments involve the services of a Notary Public. What are the functions and professional scope? (Main differences with a U.S. Notary Public)
In Argentina, an Escribano or Notario Publico is a highly trained legal professional, who provides legal advice and drafts legal documents. However, they are not allowed to process a probate case in court, but they actually work together with succession lawyers to complete the probate process.
The U.S. Notary Public
In the United States, however, Notaries are state-commissioned officials with narrow witnessing duties. Many unethical individuals exploit the confusion over these different roles to take advantage of unsuspecting immigrants.
In Argentina, it is very common for lawyers and law firms to work only with their own Notary Public, since there is a high professional responsibility in most of these procedures.
Our Notaries Public have also become experts in this foreign and international succession expertise. In addition, they are bilingual and very competent in the notarial field.
– What other professionals are necessary for a succession in Argentina?
In addition to probate lawyers, lawyers from other fields are also necessary, especially if a succession is complex. They may be criminal, tax, international attorneys, or even financial lawyers. Estate cases also may involve a Notary Public, certified public accountants, land surveyors, licensed financial advisors, family therapists, expert witnesses, real estate agents, appraisers, etc.
– Why should I retain an Argentine law firm that specializes in international probate cases?
Our firm has become well known for representing the foreign and international community residing in Argentina or for people doing business in this country. We have the experience and the expertise to handle any kind of legal affairs and matters in Argentina.