11 Jun Succession and Probate in Chile
Succession and Probate in Chile
Our law firm holds a proven record of success regarding succession and probate in Chile. Death is an unexpected event that may involve even more unexpected situations. In fact, this happens when the deceased person did not leave a will in order to settle the estate between the legal or forced heirs.
First, it is important to understand that there some assets a testator is not able to include in a will. For example, life insurance proceeds, bank accounts, and other assets held in joint tenancy, tenancy by the entirety, or community property with right of survivorship.
Below there are some basic concepts regarding the applicable law of succession and probate in Chile.
Who is in charge of filing for probate?
If a probate court proceeding is necessary, the court is in charge of appointing an estate administrator. In general, the surviving spouse will be in charge. Adult children are usually next on the list to administer the probate, as well as other family members.
The Basic Rules of Intestate Succession in Chile
According to the intestate succession law, only spouses and blood relatives have the right to inherit property in Chile. On the other hand, unmarried partners, friends, and charities will need a valid testament in order to inherit. In the rare event that there are no relatives claiming the inheritance, the Government takes the assets.
Understanding Key Terms in Intestate Succession in Chile
The surviving spouse should submit a valid marriage certificate in order to show that he/she was legally married to the deceased person.
Legal separation or pending divorce: If the couple had separated before one spouse died, or if one person had begun divorce proceedings, a judge may have to rule on whether the surviving member of the couple classifies as a surviving spouse.
Same-sex marriage: There is considerable confusion over whether courts will recognize a same-sex partner as a surviving spouse. In Chile, they should not have a problem.
Children (Next of Kin)
The simple term “children” can mean different things to different people — and under different laws. Here are a few examples:
Adopted Children: In the absence of a will or other estate plan, legally adopted children inherit from their adoptive parents just as biological children do.
Stepchildren: They are not included in their definition of children for purposes of inheritance.
Foster Children: Foster children do not normally inherit as “children” of the foster parents.
Children born after the parent’s death: A child conceived before a parent’s death, but born after the death (sometimes referred to as a “posthumous” child) inherits under intestate succession laws, just as do children born during their parent’s life.
Children born outside marriage: A child born to unmarried parents always inherits from his or her birth mother, unless an unrelated family adopts the child. If the parents were never married, usually the child should show some type of proof to inherit from them.
Rights of a Deceased Heir’s Descendants
In general, intestacy laws often provide that if one from a group of heirs has died, his or her children inherit their parent’s shares. In other words, they take the place of the parent.
According to this concept (called the “right of representation”), children (or, in some cases, grandchildren) stand in the place of their deceased parents when it comes to inheritance. As a result, figuring out exactly who should inherit can be complicated depending on Chile’s law of the land.
Taking Care of Minor Children
Most importantly, parents who have young children and who make a will typically name someone to serve as the personal guardian of their children. Nevertheless, if a guardian is needed and there is no will, how does a judge know whom to appoint? In that situation, the court will appoint a guardian. Then, the judge will gather as much information as possible about the children, their family circumstances, and the deceased parents’ wishes and try to make a good decision. In fact, the primary rule is that the judge should always act in the best interest of the children.