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Wills, Inheritance &
Death in Costa Rica
Presentation by Roger A . Petersen
A ttorney at Law
San José, Costa Rica
www.plawcr.com / www.costaricalaw.com
S
WILLS
WHY A WILL ?
A will allows you to dictate who gets
what. Die without one, and the
government decides who gets what,
without regard to your wishes or
your heirs' needs.
Foreign Will
in Costa Rica
Is my Foreign Will valid in
Costa Rica –
YES - However ……
Exequatur
This is a Recognition A ction.
I t is cumbersome and requires you to:
(1) Obtain a judgment from the probate court in the country where the
Will was issued.
(2) Have the foreign court Judgment apostilled for use in Costa Rica
(3) Have the documents officially translated into Spanish and certified by the
M inistry of Foreign Relations.
(3) Hire an A ttorney to file for the recognition process before the First
Chamber of the Supreme Court.
(5) Begin an abbreviated probate process in Costa Rica.
Solution
Have a Costa Rican Will
You can limit the Costa Rican Will to cover only your
assets located in Costa Rica.
Leave your foreign (U.S. or Canada) Will intact to
handle your assets located outside of Costa Rica.
Note: U.S. Estate Planners are trained and accustomed that there should
only be one will in effect at a time. However when other countries are
involved this may not be the best approach.
Types of Costa Rican Will
Testamento A bierto
Testamento Cerrado
Open Will
Closed Will
Notarial Will
M ystic (Secret) Will
Granted Before a Costa Rican
Notary Public
Placed in a sealed envelope in
the presence of a Notary
Public.
Witnesses to the Will
You need 3 individuals to witness your
signature on the Will.
If you do not speak Spanish you will require an
additional 2 Witnesses that will act as
translators of the content of the Will.
Name Your Beneficiaries
NUM BER ONE HUND RED FOUTY EI GHT: Before me,
M A RI A SA NCHEZ PEREZ, Notary Public with office in San
Jose, personally appeared WA LTER HA RRI SON, of legal age,
divorced, businessman, resident of Escazu, Urbanization Bello
Horizonte from the first entrance one hundred meters south and
five hundred west with passport number BR 1646432 and
STATES: That he appears in this act to state this Last Will and
Testament according to the laws of Costa Rica and the following
clauses: FI RST: That he names A NNE O’ BRI EN, no second
surname on account of her Canadian nationality, of legal age,
married, businessperson, resident of Vancouver, Canada and born
on December 23, of 1971, only heir of all my assets, property,
share certificates, bank accounts which are located in Costa Rica
and which I may have at the time of me death
Name the Executor of the Estate and A lternative Executor
SECOND : That he designates A NNE O’ BRI EN as the Executor
of the estate for all purposes as required by law. In her absence I
name a substitute, M r. RONA L D JONES, no second surname on
account of his Canadian nationality, of legal age, married,
businessperson, resident of 200 Royal Street Vancouver, Canada,
THI RD : In the event the testator and the beneficiary die in the
same act he confers his entire estate to the children of A NNE
O’ BRI EN which may living. FOURTH: That it is his intention
that this L ast W ill and Testament only apply to assets that are
located in Costa Rica. THAT IS A LL.
If the intent is for this to be a Costa Rica only Will –then indicate so in the Will
Open Wills are Filed
The Corporation in Costa Rica
Notary Public
Drafts Property Deed
CORPORATIO
N
Your Corporation
Owns Property
You own the Shares
Spouses are on the
Board or M anagers
of the corporation.
Either acting jointly
(limited) or acting
independently of
each other (full
authority).
The Corporation as an Estate
Planning Tool
It is NOT automatic. The shares of your
corporation will not “ automatically” pass to your
heirs.
They will pass according to the terms of your Will
The Corporation as an Estate
Planning Tool
Board of Directors of S.A . or M anagers of S.R.L
Spouses acting jointly or independently of each other
allows spouse to take over management of the
corporation
You could put your children/ heirs in the corporation
with limitations.
“ ……. in the event of the death, or medically declared
incapacity of either the President or Secretary of the
corporation theTreasurer will have unlimited Power of
Attorney..”
Joint Tenancy Property
With Right of Survivorship
In the United States
Joint Tenancy Property
“ Propiedad en Derechos”
In Costa Rica
NO automatic “ RIGHT OF SURVIVORSHIP”
Costa Rica Joint Tenancy means one spouse owns ½ and the
other the other ½
In the event of death you must probate the Will to have the
other half transferred to the surviving spouse
POWERS OF ATTORNEY
1. Poder Generalisimo
The most expansive one. Needs to be recorded
2. Poder General.
Generally use for administration – M ore restrictive
3. Poder Especial.
Issued for a specific act or series of acts that may be required
POA Can be Revoked. POA ends with the death of the issuer.
M EDICA L DIRECTIVES
Sample M edical Directives
To agree to, refuse, or withdraw consent to any type of medical care,
treatment, surgical procedures, tests, or medications. This includes decisions
about using mechanical or other procedures that affect any bodily function, such
as artificial respiration, artificially supplied nutrition and hydration (that is, tube
feeding), cardiopulmonary resuscitation, or other forms of medical support, even
if deciding to stop or withhold treatment could or would result in my death;
To have access to medical records and information to the same extent that I
am entitled to, including the right to disclose health information to others;
to authorize my admission to or discharge (even against medical advice)
from any hospital, nursing home, residential care, assisted-living or similar
facility or service;
Testamento Vital o De Vida
Sample Used in Spain
Costa Rica M edical Directives
& Euthanasia
Costa Rica A ctive Euthanasia is illegal – criminal offense
Costa Rica Passive Euthanasia where you refuse medical
treatment is a “ grey area”
A rticle 46 Civil Code “ Every person may refuse to be
submitted to a examinations, medical treatment or
surgery…”
No Laws or Regulations directly addressing Living Wills in
Costa Rica.
INHERITA NCE
Dying with or without a Will
W I TH A W I L L
I NTESTATE NO W I L L
INTESTATE
This means you die without
having a valid Will
CONSEQUENCES
The Costa Rica Civil Code K ICK S in
Intestate Distribution of A ssets
1st DEGREE:
Spouse (or free union spouse), children and parents of the
deceased
2nd DEGREE: Grandparents
3rd DEGREE: Natural born siblings on the mother’s side
4th DEGREE: The nephews of the deceased
5th DEGREE: The uncles of the deceased
6th DEGREE: The Board of Education
What is Probate ?
The action or process of proving
before a competent judicial authority
that a document offered for official
recognition and registration as the last
will and testament of a deceased
person is genuine.
The Probate Process
JUDI CI A L PROBATE
NOTA RY PROBATE
Filed before a Civil Court with
proper jurisdiction
Requested before a Costa Rican
Notary Public
The rules of Civil Court
procedures applies to the
proceeding
Only Available if there are no
minor children
Takes longer depending on the
Civil Court involved.
Only available if there are no
contested issues between heirs
The Probate Process
1.
Opening of the Probate Process
2.
Take inventory and appraisal of Estate Property
3.
Declaration of the legitimate heirs of the Estate
4.
The ratification of the Estate and the Executor
5.
Distribution and Partition of the assets of the Estate
COM M UNITY PROPERTY
Community Property is made up of the assets that come
into a marriage during the marriage.
In the U.S. you have “ community property” states
(California) and separate property states.
Costa Rica does apply community property. However it
crystallizes upon the D IVORCE of the parties or D EATH
of one of the parties.
Forced Heirship and
Community Property
Testator is free to dispose of their property i.e. no
forced heirship.
- However there are limitations.
1. M ust provide for the support of minor or disabled
children. A rticle 595 Civil Code.
2. Support for spouse & distribution of community
property. Family law dispositions come into play. Spouse
entitled to ½ of community property.
Distribution Example
A sset: Real Estate worth $300,000. A ssume it was
purchased during the marriage.
Heirs. The spouse and 2 children.
Surviving spouse gets $150,000 as community property.
The remainder, $150,000 would be the value of the Estate.
That would be divided 1/ 3 each. $50,000 for spouse and
$50,000 for each of the children.
COSTA RICA TA XES
INHERITA NCE
S
Inheritance / Estate Taxes
Costa Rica applies territorial
taxation.
Costa Rica does not apply an
inheritance tax.
Watch for foreign remittance tax
if the proceeds are generated in
Costa Rica and sent to a foreign
domiciled heir.
Property Transfer Taxes
To transfer real estate from the deceased to any of the heirs
the applicable property transfer, registry fees and Notary fees
are due payable.
Estimate 3.5% of the value of the asset as reported in the
inventory of the Estate.
DYING IN
COSTA RICA
What Happens ?
S
FORM DS-2060
Costa Rica Death Certificate
The Civil Registry
http:/ / tse.go.cr
Where and How You
Die Define the
Procedure that is
Required
S
Death in the Hospital
The hospital will deliver the certificate of death to next of
kin.
Next of kin may accept delivery of the body through the
funeral home of their choice
Funeral services are arranged
The deceased is buried in the cemetery of their choice or is
cremated or repatriated.
Death at Home
Due to Documented Illness
The lead treating physician may issue a
certificate of death.
Funeral arrangements are made with the
funeral home of your choice.
The deceased is buried at the cemetery their
choice, cremated or repatriated.
Death From A ccident, Violence
or unknown factors
The proper Legal authorities must be contacted so that
the body may be removed with proper legal
authorization.
The deceased must be transported to the forensic lab so
that an autopsy can determine the cause of death.
The authorities will deliver the deceased's body to
family members, along with the certificate of death.
Funeral arrangements and burial, cremation or
repatriation are arranged.
M edical Autopsy
A M edical A utopsy is mandatory:
1. Death due to violence (homicide, suicide, accidents)
2. Natural death when there was no medical treatment
3. Natural death with medical treatment but suspicious
circumstances.
CREM ATION
Requirements for Cremation
The certificate of death or medical report is required.
Costa Rica Law requires that bodies for cremation have been
autopsied first. Some local funeral homes have their own
licensed autopsy facility.
If the body is in the Forensic Lab then this has already been
done and no additional procedure is required. If not, an
autopsy may be conducted by a pathologist. The funeral home
can assist with this procedure.
REPATRIATION
Repatriation Insurance
You Can’t Take it With You
For M ore Information Visit
www.CostaRicaLaw.com
Thank You
Lic. Roger Petersen
www.plawcr.com /
www.costaricalaw.com
506-2288-2189 Ext. 101
e-mail: [email protected]