PROBATE LAW – LAST WILL - AFTER-DEATH ARRANGEMENTS - LIVING WILLS 

As a general rule, Argentine law is particularly restrictive in terms of succession planning. There are rigorous limitations for the potential testator to dispose of the estate upon his death, and therefore, any provision violating those restrictions can be voided or otherwise challenged.

It is for that reason that succession planning in Argentina is far from ordinary.

However, for those of us having some concerns on that subject, there is still room for planning. But special consideration must be given to this all applicable rules, so as to ensure that your testamentary dispositions will be fulfilled.

Having said this, let’s see what it is all about.  

• What Types of Inheritances are there in Argentine Law?

There are basically two different kinds of probate proceedings in Argentine: intestate successions, meaning successions in absence of a will (sucesiones ab intestato), and testamentary successions. 

Intestate succession

If a person dies leaving no will (intestate succession) Argentine law determines who will inherit the estate, and how it will be distributed, in case of plurality of heirs. 

Testamentary succession

If you do not wish your relatives to inherit you, or if you don’t have any heir, you can make a will in favor of a public welfare organization (Testamentary successions), as a way to contribute to the community (see limitations concerning forced heirs). 

Vacant succession

If the person has no heirs, the estate is considered vacant and, as such, all assets will be transferred to the Provincial State, which is the worst scenario (these proceedings are cumbersome and generally the estate is mostly consumed by expenses). 

• Different types of inheritors.

Under Argentine inheritance regulations there are three types of heirs:

(i)           Forced heirs (herederos legítimos o forzosos): they are those heirs that cannot be deprived of their (forced share of the) estate even by will. 

They are the descendants, spouses and parents of the decedent.

(ii)          Non-forced heirs: they are those heirs who inherit if there are no forced heirs or will. They are the relatives until the fourth degree as: brothers, nephews, uncles and cousins.

(iii)         Testamentary heirs: they are those heirs appointed by a will.

• What wills are valid?

Forced estate.

Argentine inheritance regulations provide for a wide range of forced heirship rules. Such rules cannot be waived, modified or otherwise disposed of by any contractual or testamentary arrangement.

The forced estate or legítima is a portion of the estate of a deceased which the heirs cannot be deprived of, except in case of dishonor (indignidad), e.g., attempted murder of the testator (among other very exceptional cases). 

What that the testator may freely dispose of:

The capacity of individuals to make testamentary dispositions with respect to their estate extends only to a statutorily established portion of such estate, which cannot affect the forced estate that the law assigns to forced heirs. This means that the testator cannot impose any charges or conditions whatsoever upon the protected share referred to, the legítima. If a testator does so, such charges and/or conditions shall be considered as not written.  

If there are no forced heirs, an individual is free to testate at will. In this case, the testamentary arrangements shall supersede all hereditary rights that regular (i.e., not forced) heirs may have. 

The estate of a deceased individual with no forced heirs who dies intestate, shall pass to regular heirs as a matter of law.

• What happens in Argentina if you die without a will? Who succeeds? 

Distribution of the estate.

If you die without a will the statutory heirs succeed. 

1. Decedent survived only by children: The children take the entire estate, which is divided into equal parts for each heir. If any of the children has pre-deceased the decedent, the share of that child passes to his issue, who take per stirpes (i.e., they take by representation the share that their parent would have inherited if living).

2. Decedent survived by ascendants (i.e., lineal relatives in the ascending line): The ascendants take only if the decedent is not survived by issue. In this case, each generation excludes the further one (e.g., if the decedent is survived by one or both of his parents, no share in the estate passes to the decedent’s grandparents). 

3. Decedent survived by a spouse and children: The spouse and children all take the estate per capita, except for the marital property corresponding to the decedent, which passes only to the children (please see below for the definition of marital and non-marital property under Argentine law). 

4. Decedent survived by a spouse and ascendants: The surviving spouse takes one half of the decedent’s non-marital property and one half of the decedent’s marital property. The remainder of the estate passes to the ascendants. 

5. Decedent survived by a spouse only  and no issue or ascendants: The spouse takes the entire estate.

6. Decedent not survived by issue, ascendants or a spouse: The estate passes to relatives within the fourth degree of collaterality (i.e., (i) siblings of the decedent and their issue until grand-nephews/nieces, and (ii) cousins of the decedent). The next of kin prevails.  Between siblings of whole and half blood, the latter receive half of the share of the whole-blooded siblings. 

If he/she made a will:

The Argentine Civil and Commercial Code grants to the foregoing heirs, except for the collateral relatives, a statutory right to “reserved portions” (legítima) of the estate.  

How to determine the protected share (legítima) of the estate.

To such purpose, the net value of the estate left shall be added to the value of the donations the testator might have made. 

The reserved portions are as follows:

Children: 2/3.

Grandchildren and other lineal descendants take the same proportion, within the limits of the share of their immediate ascendant.

Ascendants: 1/2.

Spouse, when there are neither descendants nor ascendants of the testator: 1/2

• Marital property

Under Argentine law, all assets acquired by the spouses upon marriage are considered “marital property” (bienes gananciales), unless they were acquired as gifts.  Each spouse is free to manage and dispose of the marital property acquired by him or her (in the case of the disposal of certain assets, such as real property, assent of the other spouse is required).  

Upon dissolution of the marriage (by death or otherwise), the marital property is divided and distributed by halves between the spouses. Other assets (i.e., those acquired before the marriage, or during the marriage as gifts) are considered “non-marital property” (bienes propios); they may be freely managed and disposed of by the individual spouse (except for real property where the spouses live, if they have minor or legally minor children), and remain with him or her after dissolution of the marriage.

What about a donation with reservation of usufruct?

A donation with a reservation of usufruct is a very popular means of succession planning, particularly in the case of the transmission from parents to children. 

If the donor dies later, the usufruct ceases to exist and is reunited with bare ownership again, avoiding an inheritance proceeding. 

However, since 08/1/2015 (with the new Civil and Commercial Code) this continues to exist, but it is no longer advisable, as the donation can be challenged, even from parents to children (which was not an issue before), for 10 years since the donation or 5 years since the death, what occurs earlier.

Thus, donation is no longer a convenient means for succession planning. 

What about a sale with reservation of usufruct?

This is a succession planning instrument not so ordinary in Argentina (on the contrary, it is commonly used in France, under the name of “viager”). It consists of the sale of the bare ownership, while retaining the usufruct. This transaction allows the seller to enjoy the property while he/she is alive, and at the same time, get paid the current value thereof (that the purchaser shall get upon death of the seller), typically as a monthly payment similar to a rent. And the purchaser gets the chance to get an asset for a portion of the value of a normal purchase. As it is contingent on the seller’s life expectancy, it is normally not viable for persons under 75/80 years old. 

• Is a will from any other country acknowledged here? 

Technically, it would not be “jurisdiction”, but yes, a valid testament would be acknowledged by any Argentine court, provided that it is not contrary to any public policy (forced heirs’ protection is deemed of public order).

Foreign wills in Argentina

A testament will be deemed formally valid if it is valid either 

• Under the law of the place where the testament is granted, or 
• Under the law of the testator’s domicile or habitual residence, or 
• Under the law of the country of the testator’s nationality.

Legal capacity to grant and revoke wills will be governed by the law of the testator's domicile at the time of granting the act.

Succession - Applicable law & Jurisdiction

The worldwide estate of a person who dies with last domicile in Argentina is subject to Argentine law, regardless of the decedent’s or the inheritors’ nationality. The only exception is real estate located abroad, which may be subject to local inheritance rules, although the effect of any gratuitous disposition thereof should be considered for the purpose of Argentinean inheritance proceedings.

Otherwise, pursuant to Argentine conflict of laws rules, the law of the decedent’s domicile governs inheritance.  However, there is an important exception: Title to real property located in Argentina may only be passed according to Argentine law. Courts.  This exception is especially relevant because of the statutory reserved portions, as commented below.

Jurisdiction: The courts corresponding to the last domicile are the ones having venue to hear the inheritance proceeding. 

Exceptionally, when the decedent did not have domicile in Argentina, but left real estate in the country, courts sitting where the real estate is located are competent for the transmission thereof.

• What Documents are Required to Begin the Process of a Succession? _

The following documents are needed to bring an inheritance proceeding, the death certificate of the deceased, marriage and birth certificates, as the case may be. Also, deeds and titles to prove the existence of the assets. All documentation must be exhibited in original.

• Costs of a succession 

The costs of successions are locally determined, so this varies in each province. 

Local regulations contemplate a scale between 6 and 20% of the estate.

But this is the legal rule for the court to award fees, absent any contractual stipulation between the parties.

Thus, the fee is negotiable, and depends on the magnitude of the estate: the larger it is, the lesser the percentage that can be agreed upon. 

Expenses also depend on the value of the assets. But on this topic, no contractual stipulation may provide otherwise. And expenses can also be sometimes significant.

• How Long does a succession in Argentina take to be fully probated?

Successions technically take about   4 / 8  months to be approved. 

However, the most important factor to have a probate proceeding finished soon is the heirs’ cooperation.

• Is a living will a legal document in Argentina? Directivas médicas anticipadas

Local law in deed contemplates a form of living will (Directivas médicas anticipadas): a capable person can anticipate directives and grant power of attorney regarding its health and foreseeing its own potential incapacity. 

A person, or more than one, can also be appointed to express the consent to medical acts and to act as curator. Directives implying euthanasia are not valid. Medical directives can be revoked freely.

• How can I ensure the correct people are notified upon my death? The last will executor (albaceas)

The best way to do that would be to appoint a last will executor (Albaceas) 

An executor has the power to act as determined by the testator, and in the absence of any specification, the power to act as necessary to fulfill the testator’s last will. 

The appointment is made by testament, but it can be in a separate testament (referring to another one, with which execution the executor is charged).  

Typically, lawyers and notary publics are appointed as executors, but actually any person capable at the time of serving as executor can act as such. Legal entities and government organisms can also act as executors (when a public servant is appointed, the appointment is deemed referred to its function, whoever turns out to be the public servant at the time of the decease).

The executorship cannot be delegated or transmitted by inheritance, but appointment of proxies is allowed (at the executor’s expense). 

The executor must provide for the preservation of the estate, and make an inventory, prior summoning the interested parties. And accounts must be rendered.

The executor will comply with all the testamentary dispositions, and will be held liable for any breach thereof, and may also be removed for failure to fulfill its purpose, or incapacity. 

• Do we need to register with our embassy to have people contacted upon death?

There are Registries holding records of the testaments granted locally. 

The consular section of each embassy usually provides notarial services, and although we are not familiar with each State’s diplomatic services, perhaps the last will can be granted directly there. 

Focus should be made where the testament will produce its main effects: i.e., if most of the assets are located in your home country, then perhaps the consular testament makes more sense. Conversely, if your center of business is in Argentina, then the testament should be local. 

It is advisable, in any case, that the testament is registered with any available service of registration, so that a court hearing a probate proceeding would get from the Registry all the information needed to fulfill the testator’s last will.

• How do I leave instructions for my funeral, cremation, etc.? 

Any capable person may dispose by any means and circumstances the instructions for its own exequies (wake, funeral, cremation, burial, etc.), as well as the donation of the body for scientific purposes. 

If the will of the decedent has not been expressed, the decision is made by the spouse, cohabiting partner, or the next of kin.