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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.
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.
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).
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?
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.
IMPORTANT This restriction is deemed to affect any foreign decision providing otherwise (including alternative planning tools, such as trusts), which shall not be acknowledged by a local court for this reason.
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.
- 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).
- 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).
- 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).
- 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.
- Decedent survived by a spouse only and no issue or ascendants: The spouse takes the entire estate.
- 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:
Grandchildren and other lineal descendants take the same proportion, within the limits of the share of their immediate ascendant.
Spouse, when there are neither descendants nor ascendants of the testator: 1/2
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.
Inheritance law and other civil law matters (English desk - legal services)
Succession and probate Argentine attorneys
Inheritance Law, Successions, Last will and testament, trusts and general planning, Advice to Argentine Heirs, Representation in the Probate proceedings in Buenos Aires City and all over the country. Estate Administration.
Probate proceedings may range from a simple transmission of assets of the estate, to very complex claims, and protracted litigation in various jurisdictions. Our Law Firm has extensive expertise in both types of proceedings.
We have extensive experience in successions in Argentina with foreigners and heirs living abroad (eventually deemed non Argentine residents).
Language and cultural barriers make it difficult to face a succession proceeding abroad. Thus, it is important to rely on attorneys fluent in your language and familiar with international successions, which are usually more complicated than a domestic proceeding.
We aim to be one of the leading probate and trust law firm providing administration, litigation, and planning services, and we are used to dealing with international cases.
We offer free initial consultations to walk you through the main features of the process. We love solve the most difficult problems.
Succession & Probate proceedings in Argentina / Buenos Aires. Inheritance Law
Probate / succession proceedings in Argentina / Buenos Aires.
Required documentation and information for Probate proceedings in Argentina:
1) Death certificate.
2) Birth and or Marriage certificate, as the case may be. If any heir is dead, or there are more than one degree of kinship to evidence, all the relevant certificates (birth and death) will be needed.
3) Names, Address, ID and Civil Status of all known heirs.
4) Property titles
5) Power of attorney (if necessary)
If any of these documents were issued in a foreign country, the relevant document/s must be apostilled / legalized and translated (by a chartered translator, and the translations must all be legalized by the translator’s bar) into Spanish if they were not in that language.
A probate case / succession can take from 4 months to several years, if it becomes litigious.
The costs involved are:
1. Attorney fees:
Depending on the jurisdiction and nature of the case and the work involved, attorneys in Argentina are awarded by the court (absent any agreement) from 6 to 20 percent of the value of total estate which are being inherited.
However, the parties may agree otherwise. We recommend agreeing this, so that you may know in advance exactly how much you will have to pay.
You can either pay us at the beginning of the process, or according to the different procedural stages, or you can even arrange to pay only upon the sale of the inherited assets.
2. Expenses (up to the judgment determining who the heirs are - declaratoria de herederos):
Translations, attorney ticket, official gazette, reports from registries of last wills, and other minor expenses. Except for the translations, which depend on the extent of the needed work, the rest of the expenses altogether are less than USD 50, approximately.
3. Court tax:
Depending on the jurisdiction, from 1.5 to 2.2 %, plus other expenses, also dependent on the jurisdiction (social security, taxes, etc.)
4. Other expenses for registration:
Reports from the Public registry, fees for registration, etc. This depends on the type and value of the asset and the jurisdiction, but it should not represent a significant expense, in relation to the overall cost.
At your request, for you to know the costs in advance, we are ready to prepare a fee proposal and an estimate of expenses, if you can provide us with some information of your case.
We are aware that handling complex legal matters from a distance can be difficult and costly.
We offer the handling your probate proceeding through a special power of attorney.
Thus, you may avoid costly travel, as well as unnecessary responsibilities and obligations.
The international perspective of our legal firm
We specialize in providing legal assistance to international clients having business or personal matters in Argentina.
Our international perspective.
Alejandro Breit, along with most of the firm’s team, has broad international experience and perspective, having studied as much as 6 different languages and dealt with so many diverse cultures. This often proves to be a valuable benefit for clients who have previously experienced some language or cultural barriers when working with foreign attorneys or law-firms.
The firm is fully bilingual and able to communicate and prepare documents with equal ease in Spanish and English. Some professionals are fluent in other languages, including Portuguese, French, Russian and some of them also have working knowledge of German and Arabic.
For further information, please feel free to learn About the Law Firm. For your reference, we provide recommendations from satisfied clients, and expressions of the highest esteem of some of our colleagues (see Testimonials). Also, you will see our credientials (e.g. Chambers & Partners).
For any query, please contact us here (through most of the simplest communication means), and assistance will be provided right away. For immediate contact, our phone number is 54 9 11 6439 8433.
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Our Service philosophy.
When we founded the law firm, we were determined to move away from some of the traditional models of how “big law firms” usually work. These law firms still rely on the outdated model based on ‘billable-hours’, which in our view directly discourages efficient or quick results, given its natural predilection for billing the maximum number of hours for every matter, which leads to having a reward even for creating problems.
These new service and value based methods and technologies have considerably increased efficiency and productivity and have also made things easier for clients.
We have confirmed over the years that this maximizes the outcome. As a result, our clients get more of want they expect from a law firm: effective result-oriented work; direct personal attention, with open and easy communication; and –to sum up– attainable concrete solutions.
Billing Policy. Flexibility.
Our billing policy is in perfect harmony with the service philosophy described above. As a result, we are proud to be able to provide a fair and competitive fee proposal.
Our policy is flexible, so as to adapt to the changing particular needs of each of our clients. Thus, we contemplate the following billing alternatives:
* Contingent fee: As the best example of a result-oriented approach, a success fee is an available alternative, either as an exclusive or combined policy. The percentage of the success fee can even be adjusted, depending on the magnitude of the results, thus totally aligning the Firm’s interests with those of the client.
* Monthly lump sum (abono). It is an amount estimated as a monthly average of the professional time spent on the client’s affairs. It is particularly suitable for businesses, allowing optimization of legal fees and foreseeability for budgetary purposes.
* A fixed fee. It is a total sum calculated for a particular work entrusted by the client. This amount can be payable in installments, depending on the duration of the services hired.
* Estimate or Maximum fee. Considering the magnitude of the entrusted work, fees can be calculated by stages.
* Hourly basis. We keep a detailed record of time spent on each matter (Time-sheet).
Our fees are invoiced, at the client’s choice, on a monthly or quarterly basis, or when the work is completed.
Also, depending on the circumstances of the particular case, we can discuss any other alternative that better fits our clients’ needs.
Fair and reasonable determination.
Our Law Firm determines the fees considering:
– The complexity of the matter;
– The time and resources dedicated;
– The seniority of the involved professionals;
– The entrusted responsibilities, in light of the amounts at stake and results;
– The special circumstances of each case, in relation to time constraints and way of implementation.
The expenses incurred in relation to our clients’ matters are reimbursable on a monthly basis, with detailed rendition of accounts.
Expenses are limited to those strictly necessary, and do not include any mark-up or gain of any nature.