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Succession & Probate in Buenos Aires, Argentina: Inheritance law, heirs

How does the inheritance / probate process / succession work and operate in Buenos Aires and/or any Argentine province?

Once a person dies leaving universal heirs, these must gather certain documents in order to initiate the probate process or succession.

These documents are briefly described below:

1. DEATH CERTIFICATE: A death certificate must be obtained for each deceased person who is involved in any given succession. In Argentina the death certificate is in some way the “new ID” of the person who has passed away. Also, be advised that it is a frequent practice that when a person passes away the mortuary will request and retain the deceased’s ID (Documento Nacional de Identidad) in exchange for granting a death certificate; therefore, it is extremely important to make certified copies of the deceased’s Documento Nacional de Identidad by a duly licensed Escribano before giving them to any agency/mortuary in exchange for the deceased’s death certificate.

2. TITLE DEEDS: The probate court will need the title deeds of all the properties that the deceased owned. If the deed is not available, the Judge will have to request to the local property registry what is called a “second testimony” in order to verify that the deceased had real ownership of the property in discussion. A dominion certificate should also be requested to understand whether the title is free and clear.

3. BIRTH CERTIFICATE: This certificate will be required for all those heirs who claim kinship as this document expressly mentions who the heirs’ ascendants are.

4. MARRIAGE CERTIFICATE: This document must be obtained for the deceased if he/she/they were married at the time of their death. Also, all heirs must provide these certificates.

5. ID’s: Documento Nacional de Identidad’s or Passports must be provided to prove personal identity. A photocopy of these documents will suffice but a certified copy is even better proof for an argentine court.

6. POWERS OF ATTORNEY: If a heir cannot be present at the time a document needs to be signed previously to it being filed, the best option is to grant the representing attorney an ample power of attorney / POA with specific succession faculties. This power allows the attorney to do almost everything its client can do, and therefore, doesn’t require the client to be present at all.

7. VEHICLE’S CARD: If a vehicle is part of a succession, a certified copy of its identifying card will be required. In Argentina it’s also called “Green-Card” because of its light-green color.

Even though these are most of the documents that are usually required for an average probate case, this does not mean that other specific documents may not be required.

Be advised that if any of these documents were issued in a foreign country they must all be apostilled and translated into Spanish if they were not partially or totally in that language.

Translations must be done by a Certified National Public Translator, and the translations must all be legalized by the translator’s bar. “Apostilling” a document means adding the Hague Convention Seal to the document, which gives the latter full international validity to what needs to be presented in Argentina in this specific case. Please check to see if your foreign country has signed the International Document’s validity Convention or Legalization of Foreign Public Documents Treaty celebrated in Hague. At the time of presenting the whole initial probate filing, the attorney representing the heirs should request the court’s clerk to certify all the originals so that these are immediately returned back to the lawyer; the clerk instead will keep copies for every original document that needs to be presented. Providing three copies of every original document a client immediately wants back is the common practice in Buenos Aires and all its other twenty three Argentine provinces.

A probate case / succession can take anywhere from six months to several years in case it suddenly becomes litigious.

The costs involved are:

1. ATTORNEY FEES: Depending on the nature of the case as well as the work involved attorneys in Argentina charge from ten to twenty percent of the total property and assets which are being inherited. The law doesn’t allow lawyers to represent clients for free in order to protect the integrity of the profession, but it also doesn’t allow lawyers to charge excessive fees in order to protect the society in full.

2. ATTORNEY TICKET: A small dollar value ticket must be paid for each and every licensed attorney that intervenes in a succession. This can be bought at the Buenos Aires Province Bar.

3. TRANSLATIONS: Translators charge on average USD50.00- per translating one full page. Their bar charges on average USD15.00- to legalize each document.

4. OFFICIAL BULLETIN / MAJOR NEWSPAPERS: So that all heirs take notice of a succession’s happening, Judges will request that the succession be published in a local official bulletin as well as in a major local newspaper.

5. JUSTICE RATE TICKET: This ticket involves a percentage of what is being inherited and it ranges from 1.5 to 2.2 percent of the fiscal value of real property. This rate depends on the jurisdiction where the real property is located. If the location is C.A.B.A the rate is 1.5%; otherwise for Greater Buenos Aires and other provinces the rate is 2.2% plus 5% of the total value of the furniture and other movable property laying in that property. Other rates apply according to how the cases may vary. If what is being transferred is a business / commercial property, other rates must be added like the commercial furniture rate.

6. GENERAL EXPENSES: KierJoffe.com only charges expenses that can be documented. Our experience has been that an average succession generates at least USD1000.00- of general expenses.

What inheritance laws apply in Argentina?

Argentine law governs inheritance of property in Argentina in most cases.

Pursuant to the Argentine National Constitution, international treaties preempt domestic law. Hence, the starting point of analysis for cross border inheritance law is international treaty application. However, only two treaties are relevant for such analysis (i.e., the Treaties on International Civil Law (Montevideo) of 1889 and 1940), and given their limited territorial application, their provisions are not discussed here. Although Argentina signed the 1989 Hague Convention on the Law Applicable to Succession of the Estates of Deceased Persons, this convention is not yet effective, and has had a low rate of acceptance. Argentina has not signed the 1961 Hague Convention on the Conflicts of Laws relating to the Form of Testamentary Dispositions.

If we then look into domestic law, the Argentine Civil Code provides that succession to the estate of a deceased person is governed by the law of the state of the decedent’s domicile at the time of death, regardless of the inheritors’ nationality. The Civil Code further provides that the same law governs the content and validity of wills.

Nonetheless, the Civil Code implies an important exception to the general rule that the law of the decedent’s domicile governs inheritance. Title to real property located in Argentina may only be passed according to Argentine law. Courts and commentators have disputed whether this provision applies only to conveyance of title between living persons or also to succession to a deceased person’s estate. A majority of court decisions have generally held that any transfer of title to real property located in Argentina, either between living persons or by inheritance (testate or intestate) is governed by Argentine law. For reasons explained below, this exception is especially relevant because of the statutory reserved portions provided by Argentine law.

Inheritance issues involving non-resident foreigners’ property are normally decided by the same court hearing inheritance issues concerning Argentine nationals and resident foreigners. Inheritance issues are dealt with by the provincial courts (i.e., not by the Federal judiciary). Under Argentina’s Federal constitutional scheme, each province has organized its own judiciary. For example, in the city of Buenos Aires inheritance issues are dealt with by civil courts hearing matters of civil law with economic content (as opposed to civil courts hearing family issues).

The length of inheritance proceedings varies according to the complexity of the case. A straightforward case (e.g., with few assets located in urban areas and no minors involved) can take approximately five to six months, from its commencement to the recording of the heirs’ title at the relevant registries.

Argentine law applies the principle of “forced heirs”.
Although valid wills are enforceable in Argentina, the Civil Code applies the principle of “forced heirs” (herederos forzosos) to assure spouses, children and certain other persons a minimum share in the estate of which they cannot be deprived without cause. “Cause” for disinheritance is limited to those stated by the Civil Code (e.g., attempted murder of the testator) and must be specifically invoked in the will). Hence, a testator’s disposition of assets is subject to the statutory minimum afforded to forced heirs. With one exception, the persons entitled to a reserved portion are the same persons as the statutory heirs designated by the Argentine Civil Code to receive an inheritance when the decedent dies intestate.

The statutory heirs of an intestate are:

1) Decedent survived only by children: The children take the entire estate. 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 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). Between siblings of whole and half blood, the latter receive half of the share of the whole-blooded siblings.

If the decedent made a will, the Argentine Civil Code grants to the foregoing heirs, except for the collateral relatives, a statutory right to “reserved portions” of the estate. Thus, dispositions by a will to: (a) heirs in excess of their reserved portions (when they are entitled to such portions), or (b) other parties, cannot exceed the residue of the estate (i.e., the part of the estate in excess of the reserved portion). Furthermore, a testator cannot impose encumbrances or conditions on the reserved portions; any such encumbrance or condition will simply be ignored.

The reserved portions are as follows:

1) Children: 4/5 of all assets existing at the time of the testator’s death and of those donated by the testator during his life. Grandchildren and other lineal descendants take the same proportion (within the limits of the share of their immediate ascendant). The individual reserved portion of each child is obtained by dividing the total reserved portion by the number of children.

2) Ascendants: 2/3 of the assets of the estate and of those donated by the testator during his life.

3) Spouse, when there are neither descendants nor ascendants of the testator: 1/2 of the assets of the estate and of those donated by the testator during his life.

If the decedent is survived by heirs entitled to take in the distribution but with different reserved portions, the highest reserved portion applies globally. For example, if the decedent is survived by his or her spouse and children, the global reserved portion shall be of 4/5. Within such global reserved portion, the spouse and the children shall take as in an intestate succession.

If the net assets of the estate are sufficient to cover the reserved portion, the gifts made by the decedent during his lifetime shall be deemed made on account of the residue of the property (i.e., the assets of the estate outside the reserved portion), except when made to an heir entitled to a reserved portion, in which case said gifts shall be deemed to be an advancement of the heir’s share in the estate.

The testator is free to bequeath or devise to third persons or enhance the share of any statutory heirs, subject to the limits of the residue of the property.

Wills made in Argentina must be pursuant to the formalities of Argentine law.
Wills are unusual in Argentina, and are generally only made by wealthy individuals. Most people die intestate, in which case the rules on intestacy described above apply.

If made in Argentina, a will is only valid when made pursuant to the formalities provided by Argentine law. Thus, a will made by a foreigner in his country’s consulate in Argentina may not be considered valid by an Argentine court.

Under general principles contained in the Argentine Civil Code, a will made abroad is enforceable if it complies with the law of the place of its making. In addition, the Civil Code specifically provides that wills made by foreigners outside Argentina and of the country of their nationality are valid if the will complies with the formalities of the testator’s place of residence, the country of the testator’s nationality, or Argentina. Foreigners residing in Argentina may also make a valid will outside Argentina by signing it and having it attested at the relevant Argentine consulate. If valid according to the rules described in this paragraph and depending on its content and formalities of its making, some Argentine courts may require that the will made abroad be transcribed in a public deed (escritura pública) in Argentina at the start of the relevant probate proceedings.

As a result of the foregoing rules, there is no advantage for a foreigner who owns real property in Argentina to make a local will, other than to facilitate the court’s probate of the will. Testators should seek specific advice from Argentine legal counsel, as some forms of will (e.g., a nuncupative or mutual will), although valid pursuant to the rules mentioned in the prior paragraph, might prove difficult to enforce in Argentina.

The testator may appoint an executor of the will, but if there are heirs, the role of the executor will be limited to simply assuring that dispositions of the will are made as directed. The duties of an executor do not include defending the interests of the heirs.

An owner can transfer property as a gift at any time before death.
As an exception to this rule, a person cannot transfer as a gift property to his or her spouse during their marriage, or to his or her spouse’s children from a prior marriage, or to the persons from whom said children are legal heirs.

Even in cases outside this exception, if at the donor’s death a gift exceeds the residue of the estate (i.e., the part of the estate outside the reserved portion), the gift may be reduced. A legal action seeking reduction may be brought by the legal heirs of the donor existing at the time when the gift was made. If said heirs include descendants, descendants born after the gift was made are also entitled to obtain a reduction of the gift.

In case of gifts made by the donor during his lifetime to his legal heirs, they will be presumed an advance of the heirs’ share in the estate, unless the donor specifically states that the gift shall be deemed to have been made from the estate in excess of the reserved portion.

If a donor wants to avoid the risk of having the gift reduced after his death, he or she should, at a minimum, include in the instrument a statement to the effect that the gift is made from the estate in excess of the reserved portion. Even so, this will not prevent the reduction of the gift if it exceeds the residue of the estate exceeding the reserved portion.

A person planning to transfer real property located in Argentina as a gift should seek legal advice. Depending on the identity of the recipient, a gift may affect the marketability of the title conveyed.

Ownership of property is determined by Title Deeds.
In matters of real property ownership, Argentine law looks primarily to the title deeds and their recording with the relevant land registry.

Law governing marital rights.
The conflict of laws rules stated in the Argentine Civil Code provide that the marital property regime—in all that is not forbidden on matters of property by the law of the place where the assets are located—is governed by the law of the place of the first domicile of the couple after marriage. A subsequent change of domicile does not change the law applicable to the relationship between the spouses as to their assets, regardless of whether the assets were acquired before or after the change.

In the case of Argentine marital property rules, in general terms all assets acquired by the spouses after 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, 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.

Minors and others require a guardian.
Under Argentine law, unborn persons and minors cannot assume obligations and must be represented in court through their parents or through specially-appointed guardians. Persons declared mentally incompetent by an Argentine court or deaf-mute persons who cannot write will receive a court-appointed guardian. In some special cases (e.g., drug or alcohol addicts, people with minor mental deficiencies, spendrifts), a guardian may be appointed to represent a person only for disposition of assets, but not for their normal management.

In case of succession proceedings with heirs under legal age or incompetent, these heirs must be represented. In addition, a special public attorney for minors must be a party to the proceedings.

Argentine law compensates those who are deprived from a right to inherit by virtue of a foreign law.
The Argentine Civil Code provides that Argentine or foreign heirs residing in Argentina are entitled to take from assets of the estate located in Argentina a portion equal in value to the assets located abroad of which they were deprived by virtue of a foreign law or usage.

Thus, if a foreign citizen dies leaving assets in Argentina and in his home country, and a will disposes that person’s property in a manner depriving an heir who resides in Argentina of his statutory reserved portion by a cause not recognized by Argentine law, that heir may take property located in Argentina in an amount equal to his or her statutory reserved portion under Argentine law.

 

The proven Buenos Aires – Argentina lawyer professionals at the Kier Joffe law firm have experience working with foreign clients involved in all kind of cases in Argentina. Buenos Aires Argentina attorney professionals are knowledgeable in almost all the practice areas of law, to service its international cases in Buenos Aires Argentina. International clients will have the confidence of knowing that the case is being handled by an experienced and knowledgeable Buenos Aires  lawyer in Argentina.

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Real Estate Purchase Process in Buenos Aires, Argentina

 

OVERVIEW

Buying property in Argentina as a foreigner is legally straightforward:

Real estate in Argentina is typically held, bought and sold freehold. Property can be acquired by individuals and corporations. The only restriction concerning foreign real estate ownership applies in the immediate vicinity of Argentina’s borders, where such ownership is subject to prior government approval.

Owning Property in Argentina is safe for the following reasons:

Under the Argentine constitution foreigners have the same property rights as Argentine nationals. The property market is priced in US Dollars. This provides a shelter from economic crises for locals and protects foreign investors from fluctuations of the Argentine Peso. If you follow the well known 3L Rule (Location, Location, Location) you will not lose money.

There are also some differences with real estate transactions in other countries:

In Argentina every single real estate purchase must go through a special attorney called an “escribano público” (Notary Public). The escribano is crucial when buying real estate in Argentina. He has to check that the seller is registered as the owner, all taxes and duties have been paid, there is no lien on the property and that there are no existing mortgages attached. He prepares the boleto (binding pre-contract) and the deed and unlike the realtor he is fully responsible for his advice and actions.

Duration:

After the sale price has been agreed it takes approximately four to six weeks until the signing of the title deed transfer (equivalent to the exchange of contracts). If you are not willing to stay in Argentina for this time period you can grant a Power of Attorney: letting the deed be signed by a person you trust.

DOCUMENTS

The legal side of buying property in Argentina is straightforward. The only documents needed are your passport and your personal Argentine tax number or CDI (Clave de Identificación). To obtain a CDI you must prove your address in Argentina (rental apartment, friend’s house) with a “certificado de domicilio”.

This can be obtained at the nearest police station to where you are staying. With this document and your passport you must then go to the nearest AFIP office (Argentine tax authority) to get the CDI. If you do not speak Spanish it is recommended that you go there with somebody who does speak the language and is also familiar with the system. Otherwise, you can let somebody else do it for you (requires a Power of Attorney). 

BUYING PROCESS

This section explains what happens after you have found the property you wish to purchase. 

Reserva:

You will make an offer to buy the property at a certain price call Reserva. It is wise to always offer a lower price (at least 5%) even if you think the asking price is already attractive. To confirm your offer the seller’s realtor will ask you for a payment in cash amounting to 2% of the offered price. The offer (Reserva) is usually valid for a week. During this period the realtor is supposed to take the property off the market and inform the seller of your offer. The seller will either accept your offer, reject it or, most likely, make a counter offer. Then it is your turn to accept, reject or make a counter offer. If an agreement on the price cannot be reached and the reserva expires, you will get your money back. If the seller accepts your offer and you back out, your money will not be returned.

Boleto:

The Boleto (a binding pre-contract) is a document normally prepared by the escribano. This is an intermediary step where the seller receives 30% of the agreed sale price. It is most commonly used when the signing of the title deed transfer is scheduled 45 days or 2 months down the line. The boleto is basically the point of no return for both the buyer and the seller. If the buyer backs out, they lose the 30% down payment. If the seller backs out, not only do they have to return that 30% but they must also pay another 30% in compensation. But, unlike the reserva, the boleto also gives the prospective buyer the legal right to enforce the property sale (although any resulting lawsuit might take years).

Escritura:

The Escritura is the actual closing date when all parties get together to sign the official deed transfer. The buyer now takes possession of the property. All taxes on the property must be fully paid up at the time of transfer.

The agreed sum is paid in cash at this time or a transfer to a foreign bank account is set up and verified at a second meeting. It is important to note that the payment required for the escritura does not need to be made in pesos. In fact, most owners will only accept US Dollars or transfers to their accounts held abroad. The buyer does not have to be physically present to sign the transfer deed if a third party is authorised by a Power of Attorney to sign in their place. It is important at this point to have requested and obtained updated floor plans that reflect actual construction. Failure to do this may result in the new buyer having to pay the unpaid taxes of the previous owner. This also guards against any unlawful construction done to the property that could lead to problems in the future with the municipal government.

COSTS

Realtor commissions: 3% to 4% of the closing value plus 21% VAT (3.63-4.84%)

Money transfer fee: 3% to 6% (depends on the time of the year)

Escribano fees: 2% plus 21% VAT (1.21-2.42%)

Stamp fee: 3.6% in the city (Capital Federal) of Buenos Aires and 3.6% in the suburbs of Buenos Aires, but if the purchase is in US dollars you have to add a 20%, totaling 4.32%. If the property is for residential use, valued under ARS 600,000, and it is the client’s first purchase the stamp fee is waived. If it is priced over ARS 600,000, the stamp fee will only be paid on the difference (Purchase price minus ARS 600,000). The stamp fee is commonly split 50:50 between the buyer and seller but you must request this when you make your offer.

Transfer Tax: Tansfer Tax is 1.5% of property value, paid by the seller. However, this tax is not applicable if the resident seller is selling his main dwelling and commits to buy another property within a year.

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