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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.

www.kierjoffe.com

 

Argentina Wills, Inheritance Law, Probate, Equity, Estate and Succession Planning Buenos Aires Lawyer attorney law firm

Probing Probate: What You Should Know

Probate is a term that is used in several different ways. Probate can refer to the act of presenting a will to a court officer for filing — such as, to “probate” a will. But in a more general sense, probate refers to the method by which your estate is administered and processed through the legal system after you die.

The probate process helps you transfer your estate in an orderly and supervised manner. Your estate must be dispersed in a certain manner (your debts and taxes paid before your beneficiaries receive their inheritance, for example). Think of the probate process as the “script” that guides the orderly transfer of your estate according to the rules. (For more info, see What’s a Probate Estate All About?)

Many people think that probate applies to you only if you have a will. Wrong! Your estate will be probated whether or not you have a will.

– With a valid will: If you have a valid will, then your will determines how your estate is transferred during probate and to whom.
– Without a valid will: If you don’t have a will, or if you die partially intestate, where only part of your estate is covered by a valid will, the laws where you live specify who gets what parts of your estate.

So read on for a few important points about probate you need to know.

The probate process

Even though you won’t be around when your estate goes through probate (after all, you’ll be dead), you need to understand how the probate process works. At the most basic levels, the probate process involves two steps:

– Pays debts you owe
– Transfers assets to your beneficiaries

A state court called the probate court oversees the probate process.Because probate courts are state courts and not federal courts, the processes they follow may vary from one state to another. Yet despite their differences, these courts all pretty much follow the same basic processes and steps, which typically include:

– Swearing in your personal representative
– Notifying heirs, creditors, and the public that you are, indeed, dead
– Inventorying your property
– Distributing your estate (including paying bills and any taxes)

Swearing in your personal representative

In your will, you name who you want to be your personal representative — that is, the person in charge of your estate after you die. However, the court determines the personal representative for your estate under the following circumstances:

– You die without a will.
– You have a will but for some reason didn’t specify who you want to be your personal representative.
– The person you selected has died or for some reason can’t serve — and you didn’t “bring in someone from the bullpen” to replace your original choice.

A family member, such as your spouse or an adult child, can request that the court appoint him or her as the personal representative for your estate. Regardless of who is finally selected, the court gives your personal representative official rights to handle your estate’s affairs. As evidence that this person has the authority to act on behalf of your estate, the court gives your personal representative a certified document called the Letters of Administration or Letters Testamentary.

In either case, the personal representative named in your will or determined by the court has to first be formally appointed by the court before officially entering into office (the term that’s used). Usually this involves that the personal representative take an oath of office, after which he or she will then receive the official documentation showing his or her status (the Letters of Administration or Letters Testamentary we mention above).

Your personal representative files a document called a Petition for Probate of Will and Appointment of Personal Representative with the probate court. This petition begins the probate process. If you have a will, the probate court issues an order admitting your will to probate. Basically, the court acknowledges your will’s validity. (Check out Status of Your Will: Testate or Intestate? to get the lowdown on how the law sees your will.)

Notifying creditors and the public

Some state laws require your personal representative to publish a death notice in your local paper. The death notice serves as a public notice of your estate’s probate and enables people who think they have an interest in your estate (such as creditors) to file a claim against your estate within a specified time period.

The notice is part of the process to make the matters of your estate part of the public record. Some people view the general public’s ability to review your private estate matters as one of probate’s disadvantages.

Inventorying your property

The personal representative must inventory the different types of property — real and personal — that make up your estate so that your estate value can be determined. This inventory is important for a couple of reasons:

1. To make sure you left enough to cover your debts and distributions to beneficiaries: If your estate doesn’t meet the monetary obligations of both your estate creditors and your property transfers to your beneficiaries, it’s subject to abatement statutes, meaning that one or more beneficiaries may receive less than you had wanted or even nothing at all.
2. To ensure that all property is accounted for. Your personal representative is in charge of collecting and inventorying your estate’s assets to make sure that all property is available for distributing at the end of the probate process. (Your beneficiaries, of course, will want to know what assets are in your estate.) If property is missing or not in your ownership at the time of your death, ademption statutes become relevant. These statutes determine if a replacement asset or cash equivalent should replace the missing property intended for your beneficiary.

You should already have a pretty good idea of what your estate is worth so that you can make intelligent choices for your estate plan. Obviously, your personal representative needs to know this information, too. So make sure that your personal representative has easy access to the list that shows what your estate includes and what your assets are worth. Even a slightly out-of-date list can serve as a starting point so that your personal representative doesn’t have to create an inventory from scratch. (The Essentials of Marshalling Estate Assets shows you what your representative will have to do after you pass away.)

Distributing the estate

The final step in the probate process is the distribution of your estate property. In other words, everyone (ideally) — both your creditors and your heirs — gets what’s coming to them.

Creditors that have a valid claim are likely to be paid in the following order (though the order varies from state to state):

1. Estate administration costs (legal advertising, appraisal fees, and so on)
2. Family allowances
3. Funeral expenses
4. Taxes and debt
5. All remaining claims

Whatever’s left after your creditors get their money is distributed to your heirs or to the beneficiaries you named in your will. If you died without a will, the laws in your state determine how your property is distributed.

If probate proceeds according to plan and all notices and communications are properly handled, your personal representative is usually protected against any subsequent, late-arriving claims. Your personal representative will be protected after some specified time period expires.

Some complicating factors to the probate process

Some probate processes can be relatively straightforward, while others can be particularly complicated depending on how complicated an estate is. The following sections describe some of the more common complicating factors about probate that you will likely encounter.

What’s probated where: Differences between states

All states have probate, and all the types of property that make up your estate — real and personal — may be part of your estate’s probate. Tangible and intangible personal property, like your collectibles and your stock portfolio, are probated in the state where you live, but your real estate is probated where the property is actually located. So if you live on a farm in Pennsylvania and also have a vacation condo in Florida, you’ll have two probates.

Probate or not: Differences between types of property

Another common misconception is that probate applies to all of your estate. Actually, probate handles the processing of all assets in your probate estate. Your probate estate is made up of all the property that’s distributed through probate; the remaining property is called nonprobate property.

In a general sense, probate assets are those you own alone, while you own nonprobate assets jointly with others and to whom those assets will pass automatically upon your death. Nonprobate assets also include assets that pass to a named beneficiary: a life insurance policy, for example. Because these nonprobate assets pass to someone automatically, there is no need for probate.

The proven Buenos Aires – Argentina same probate lawyer professionals at the Kier Joffe  law firm have experience working with foreign clients involved in probate cases in Argentina. Buenos Aires Argentina attorney professionals are knowledgeable in all areas of probate law, including but not limited to probate process 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 probate lawyer in Argentina.

www.kierjoffe.com

Wills, probate and inheritance in Argentina

Taxation

Tax year and payment dates

1. When does the official tax year start and finish in your jurisdiction and what are the tax payment dates/deadlines?

For income tax purposes, the official tax year for individuals starts on 1 January and ends on 31 December.

Domicile and residence

2. What concepts determine tax liability in your jurisdiction (for example, domicile and residence)? In what context(s) are they relevant and how do they impact on a taxpayer?

Domicile

For individuals, the domicile is the individual’s principal place of residence and business (Argentine Civil Code). When the principal place of residence differs from the principal place of business, the tax regulations provided that the domicile for tax purposes will be the principal place of business. For tax purposes, the domicile is relevant for receiving notices from the tax authority but is not used to determine tax liability.

Residence

Residence determines the manner in which an individual is taxed in Argentina. Whenever an individual, under the relevant rules of each tax (in particular, income tax and tax on personal assets), is deemed to be a resident of Argentina, the tax is levied on a worldwide basis (either on worldwide sourced income or the assets owned worldwide by the taxpayer) rather than on an exclusively Argentine basis. Resident individuals must file tax returns with the Argentine Tax Authority. Non-resident individuals are solely taxed on their Argentine-sourced income (through withholding) and on their Argentine-based assets.

Under Argentine income tax law, the following are considered Argentine residents for tax purposes:

– Argentinean individuals, whether native or naturalised, except for those that no longer hold a “permanent resident” status either because:

i. they became permanent residents of another country under that company’s immigration rules; or

ii. due to a continued residence abroad for a continuous period of 12 months. Short trips to Argentina are deemed not to interrupt the 12-month continuous residence period if they do not cumulatively exceed 90 days in a 12-month period.
Foreign individuals that have a permanent resident visa or individuals who have remained in Argentina for 12 months while holding temporary visas. If absences from Argentina do not cumulatively exceed 90 days in the 12-month period, the permanent residence period is deemed to be uninterrupted. However, foreigners who must remain in Argentina by reason of their employment for a period not exceeding five years (as well as their relatives) will not be considered to be Argentinean residents.

Under certain circumstances, individuals re-entering Argentina with the intention of residing permanently in Argentina will be considered to be Argentinean residents. This will even apply if they had previously lost their residence status in Argentina or if they acquired status as a permanent resident elsewhere.

Taxation on exit

3. Does your jurisdiction impose any tax when a person leaves (for example, an exit tax)? Are there any other consequences of leaving (particularly with regard to individuals domiciled in your jurisdiction)?

There are no exit taxes in Argentina. There are no other consequences of leaving, except that it is necessary to file a special tax return for the irregular period closing the date in which the individual leaves the country. Once an individual is no longer an Argentine resident, he:

– No longer has to pay income tax on a worldwide source basis and is only taxed, through withholding, on his Argentine-sourced income.
– Is no longer subject to personal assets tax on his worldwide assets but solely on his Argentine-based assets.

Citizenship does not necessarily determine tax liability. For example, an individual that resigns Argentinean citizenship but remains a resident of Argentina is still subject to tax in Argentina on his worldwide assets and income.

Temporary residents

4. Does your jurisdiction have any particular tax rules affecting temporary residents?

Foreigners who must remain in Argentina by reason of their employment for a period not exceeding five years (as well as their relatives) will not be considered to be Argentinean residents (see Question 2, Residence). Certain treaties to avoid double taxation also address the issue of temporary residents (see Question 14).

Taxes on the gains and income of foreign nationals

5. How are gains on real estate or other assets owned by a foreign national taxed? What are the relevant tax rates?

There is no capital gains tax on individuals in Argentina. Therefore, in principle, tax is not charged on the sale of real estate or other assets when the seller is a foreign individual.

However, if the foreign individual is usually engaged in buying and selling assets, he will be deemed an individual “enterprise” (which is not expressly defined in the Income Tax Law) and income tax is withheld on the total amount received by the seller on the sale of real estate at an effective rate of 17.5%. Alternatively, the foreign seller can file a special tax return with the tax authority to evidence the actual profit derived from the sale, and apply income tax at the rate of 35% on the net proceeds (see Question 6).

When the sale of real estate is not subject to income tax (whether made by an Argentine individual or a foreign individual), the seller is subject to a special tax on the transfer of real estate at the rate of 1.5% of the amount of sale.

Certain stamp taxes apply on the instrument (that is, public deed (escritura)) evidencing the sale. The buyer and seller customarily pay one-half each of those stamp taxes, which can be up to 4% of the sale price.

6. How is income received by a foreign national taxed? Is there a withholding tax? What are the income tax rates?

Generally, any income or profit obtained by foreign beneficiaries (as non-Argentine resident individuals are referred to under income tax regulations), which is deemed to be Argentine-sourced, is subject to withholding tax. Withholding tax does not apply on dividends paid by Argentine companies or to profits obtained from permanent establishments in Argentina.

For resident individuals, the income tax charged on a sliding scale that starts at 9% for individuals making up to ARS10,000, and goes up to 35% for individuals making more than ARS120,000. For any other taxpayer (including foreign beneficiaries) the rate of the tax is 35%.

To determine the tax liability of a foreign beneficiary, the Income Tax Law establishes a series of non-rebuttable presumptions of net income on the gross amounts paid, that varies depending on the kind of payment made by the local resident (who must act as withholding agent), including:

– 60% of the amounts paid for technical, engineering or consulting services that are not obtainable in Argentina and fulfil the requirements established by the Transfer of Technology Law (as the tax rate is 35% this amounts to an effective tax rate of 21% on the income).
– 80% of other amounts paid under the Transfer of Technology Law (effective rate: 28%).
– 35% of the royalties paid for the exploitation of copyright in Argentina (effective rate: 12.25%).

-100% in the case of interest. However, 43% (effective rate: 14%) is deemed to be the net income of Argentine source where the:

i. borrower is a financial institution;
ii. lender is a bank or financial institution located in a non-tax haven jurisdiction;
iii. interest relates to certain bonds that are registered in countries with which Argentina has concluded investment protection agreements.
– 40% of the amounts paid for renting movables goods in Argentina (effective rate: 14%).
– 60% of the amounts paid for renting real estate in Argentina (effective rate: 21%).

Finally, if the concept of the income is not expressly set out in the Income Tax Law, 90% is deemed net income of Argentine source (effective rate: 31.5%).

Argentina has entered into treaties to avoid double taxation with various countries (see Question 14).

Inheritance tax and lifetime gifts

7. What is the basis of the inheritance tax or gift tax regime (or alternative regime if relevant)?

There are no federal inheritance or gift taxes in Argentina. Only one jurisdiction (the province of Buenos Aires) has imposed an inheritance and gift tax on the amount received by the beneficiary. This tax is applicable as from January 2010, and is charged on assets:

– Located in the province (even if the owner is not domiciled there).
– Transferred to individuals or legal entities domiciled in the province.

The tax rate will depend on the amount received by the beneficiary and his relationship with the deceased.

8. What are the inheritance tax or gift tax rates (or alternative rates if relevant)?

Tax rates

Tax is payable on the amount received, at progressive rates from 4% to 21.92%.

Tax free allowance

There is a tax-free allowance of ARS50,000 on the aggregate of the lifetime gifts of an individual and the gifts at the time of death. This amount is increased to ARS200,000 when the receiving party is the spouse, child or parent of the transferor.

In addition, in relation to inheritance tax, the debts of the deceased existing at the time of his death, and funeral expenses, are deductible from the amount transferred to the beneficiary.

Exemptions

The following are exempt from inheritance or gift tax:

– Any transfers in favour of the national government, the provinces or the City of Buenos Aires or any municipality or any body of these institutions.
– Gifts to religious, public health, social assistance, cultural or public welfare institutions, provided those institutions comply with certain conditions.
– Transfer of art or other objects that have a historic, scientific or cultural value, as long as the deceased has transferred the property on the basis that the art or object is to be used for instruction or public exhibition purposes.
– Transfer of collections of books, newspapers, magazines or other periodic publications.

– Transfer on death of the household registered under the Family Household Protection Act (Law N° 14,934) when:

i. the transfer is made in favour of the spouse, descendants, ascendants or collateral relatives up to the third degree of relationship with the deceased;
ii. they lived with the deceased;
iii. the registration of the property under the Family Household Protection Act is maintained for at least five years after the death.

– Transfer on death of urban real estate that is used as the household, when the:

i. transfer is made in favour of the spouse, ascendants or descendants (including adopted children);
ii. property does not exceed a certain valuation, established by the province on an annual basis.

– Transfer on death of an enterprise when the:

i. aggregate gross income of the fiscal year before the year of death exceeds a certain figure established annually;
ii. transfer is made in favour of the spouse, ascendants or descendants (including adopted children);
iii. acquiring parties maintain the enterprise in activity for five-year period following the deceased’s death.

Techniques to reduce liability

The simplest way to avoid inheritance or gift tax liability is to avoid being domiciled in the province of Buenos Aires, and to own assets through a company domiciled outside of the province of Buenos Aires.

Other

Not applicable.

9. Does the inheritance tax or gift tax regime apply to foreign owners of real estate and other assets?

If the assets are located in the province of Buenos Aires, the tax applies even if the owner does not reside in Argentina.

10. Are there any other taxes on death or on lifetime gifts?

There are no other taxes on death or on lifetime gifts.

Taxes on buying real estate and other assets

11. Are there any other taxes that a foreign national must consider when buying real estate and other assets in your jurisdiction?

Purchase and gift taxes

The provinces impose stamp tax on the public deed required to transfer real property (see Question 5). The rate varies depending on the province, and ranges from 2% to 4% of the price paid for the property being transferred.

In addition, there is a special tax on the transfer of real estate that applies when the sale is not subject to income tax (that is, when the sale is made by an individual rather than an enterprise). The rate of the tax is 1.5% applicable of the price paid.

Wealth taxes

The Personal Assets Tax applies to foreign individuals holding property (whether real estate, movable property or intangible property) in Argentina. The rate of the tax is 1.25% and it is levied on an annual basis. When the owner of the real estate is a foreigner, there are certain methods of substitution that impose the obligation to pay the tax on the local resident that has the administration of the asset.

Other

Each of the provinces and the city of Buenos Aires (which has an autonomous status, as if it were a province) levy a tax on real estate. The tax is imposed on the fiscal valuation of the real estate and the rate varies depending on the valuation of the property.

12. What tax-advantageous real estate holding structures are available in your jurisdiction for non-resident individuals?

The simplest holding structure is to have a special purpose foreign company to own the real estate in Argentina. This company must be set up in a country that does not tax capital gains (or at least does not tax the capital gains stemming from the sale of equity instruments). There are no local rules that deem the sale of this special purpose company a sale of real estate in Argentina.

Taxes on overseas real estate and other assets

13. How are residents in your jurisdiction with real estate or other assets overseas taxed?

Local residents are taxed on their worldwide income; however, capital gains are not subject to tax, except when the individual usually trades in selling and buying real estate or assets (see Question 5).

International tax treaties

14. Is your jurisdiction a party to many double tax treaties with other jurisdictions?

Argentina has entered into double taxation treaties, although some have been recently cancelled or repealed (such as the ones entered into with Spain and Austria). Current treaties include treaties with: Australia, Belgium, Bolivia, Brazil, Canada, Denmark, Finland, France, Germany, Italy, The Netherlands, Norway, United Kingdom, Sweden and Switzerland.

Wills and estate administration

Governing law and formalities

15. Is it essential for an owner of assets in your jurisdiction to make a will in your jurisdiction? Does the will have to be governed by the laws of your jurisdiction?

It is not essential for an owner of assets in Argentina to make a will in Argentina. Where no will is present, forced heirship and intestacy rules apply (see Questions 24 to 29). In Argentina, it is not usual to have wills or testaments, except for certain wealthy individuals. There is no requirement for the will to be governed by the laws of Argentina, although the provisions of a foreign law are only applied where they do not violate Argentine public policy (for example, forced heirship rules).

16. What are the formalities for making a will in your jurisdiction? Do they vary depending on the nationality, residence and/or domicile of the testator?

The formalities for making a will in Argentina are the same, regardless of the nationality, residence and/or domicile of the testator.

There are three different ways in which wills can be made (Argentine Civil Code):

1. Handwritten testament (testamento ológrafo). This must be completely handwritten, signed and dated by the testator.
2. Public deed testament (testamento por acto public). This must be notarised by a public notary, with three witnesses that insert their signature in the public deed.
3. Closed testament (testamento cerrado). This does not have to be completely handwritten by the testator, although it must bear the testator’s signature. In addition:it must be given in a closed
i. envelope to a public notary in the presence of five witnesses;
ii. the testator must say aloud that the closed envelope contains his will.

Redirecting entitlements

17. What rules apply if beneficiaries redirect their entitlements?

Beneficiaries are not entitled to redirect their entitlements.

Validity of foreign wills and foreign grants of probate

18. To what extent are wills made in another jurisdiction recognised as valid/enforced in your jurisdiction? Does your jurisdiction recognise a foreign grant of probate (or its equivalent) or are further formalities required?

Validity of foreign wills

Wills made in a foreign jurisdiction are recognised as valid, as long as they comply with the law of the place in which the wills were made. Substantive provisions, however, must comply with Argentine law (in particular, forced heirship) to be enforceable in Argentina. The law will also enforce wills made by foreigners outside of Argentina if the will complies with the formalities of the place of residence of the testator, his country of nationality, or those of Argentina.

Validity of foreign grants of probate

As with foreign wills, foreign grants of probate will be recognised in Argentina if they comply either with Argentinean laws or the relevant foreign law (see above, Validity of foreign wills). No further formalities are required.

Death of foreign nationals

19. Are there any relevant practical estate administration issues if foreign nationals die in your jurisdiction?

The issues depend on whether the foreign national’s last domicile was in Argentina or not and whether he had any assets in Argentina. If he was domiciled in Argentina, Argentine rules apply and a court-based procedure (sucesión) must be followed. This also applies if he has assets in Argentina.

Administering the estate

20. Who is responsible for administering the estate and in whom does it initially vest?

Responsibility for administering

The court appoints an administrator of the estate (usually, the surviving spouse or an heir or a group of heirs) that has limited authority to carry on acts that are:

  • Necessary to preserve the estate.
  • Ordinary, considering the nature of the goods and assets that are being administered.

The administrator, in principle, has no authority to sell, mortgage, pledge or otherwise dispose of or encumber the goods and assets.

Vesting

A court procedure must be followed to finally declare the legitimate heirs of the deceased. When the court makes that declaration, the estate is deemed to have vested directly and immediately from the deceased to each of its heirs.

21. What is the procedure on death in your jurisdiction for tax and other purposes in relation to:
  • Establishing title and gathering in assets (including any particular considerations for non-resident executors)?
  • Paying taxes?
  • Distributing?

Establishing title and gathering in assets

Any and all heirs are entitled to establish title and gather in assets. However, everything must be done through the court procedure and with the control of the judge. There are no particular considerations for non-resident executors in this aspect, since court participation is mandatory. If a non-resident executor has been appointed, the court will probably require from him a local address for service of process.

Procedure for paying taxes

Until the court procedure is ended, the administrator is responsible for filing tax returns and paying taxes on behalf of the estate. Failure to do so could make the administrator jointly and severally liable for any unpaid taxes.

Distributing the estate

The court distributes the estate in the court procedure (see above, Establishing title and gathering in assets). The court decides how the distribution is to be made or grants authority to distribute the estate to the testator or the executor.

22. Are there any time limits/restrictions/valuation issues that are particularly relevant to an estate with an element in another jurisdiction?

In principle, there are no time limits, restrictions or valuation issues that are particularly relevant to an estate with an element in another jurisdiction.

When the estate involves elements in different jurisdictions, certain “offset” provisions of the Argentine Civil Code might be relevant, depending on the facts. Heirs of the deceased that reside in Argentina would be entitled to a larger portion of the assets that are located in Argentina if, due to the application of foreign law, they were deprived of assets located abroad (or a portion of those assets) that should have, under Argentine Law, been allocated to them under the forced heirship regime (see Question 24). Therefore, if a foreign resident dies leaving assets in both Argentina and in his home country, and through a will deprives an heir who resides in Argentina of his statutory reserved portion under Argentine Law, that heir is entitled to the additional portion of the Argentine assets, equal to the value ascribed to the deprived portion (see Question 24).

23. Is it possible for a beneficiary to challenge a will/the executors/the administrators?

A beneficiary is entitled to challenge the:

i. Will, when it affects the portion that Argentine Law mandatorily reserves for forced heirs.
ii. Executors, when their acts affect the portion that Argentine Law mandatorily reserves for forced heirs or when they depart from the instructions contained in the will.
iii. Administrators, when they perform their duties in excess of their authority or without fulfilling the “good businessman” standard.

Succession regimes

24. What is the succession regime in your jurisdiction (for example, is there a forced heirship regime)?

Argentina has a forced heirship regime that is deemed part of public policy. Any provisions of the parties (either by the deceased or the heirs) against it are invalid and of no force and effect. There are precedents in Argentine courts in which forced heirship claims have been admitted against trust assets.

Forced heirs (ascendants, descendants, spouses and others) cannot be deprived of a certain portion of the deceased’s estate (except where one of the few statutory causes for disinheritance are present and invoked by the decedent in the will). These portions are:

  • i. Children and their issue: four-fifths of the total assets of the deceased.
  • ii. Ascendants (where there are no children): two-thirds of the assets of the deceased.
  • iii. Spouse (where there are no ascendants or descendants): one-half of the assets of the deceased.

In relation to the intestacy rules, see Question 28.

Forced heirship regimes

25. What are the main characteristics of the forced heirship regime, if any, in your jurisdiction?

Avoiding the regime

There are no ways to avoid the regime and judges are reluctant to admit structures that defeat the forced heirship rules.

Assets received by beneficiaries in other jurisdictions

Assets received by beneficiaries in other jurisdictions are taken into account (see Question 22).

Mandatory or variable

Any agreement entered into between future beneficiaries during the deceased’s life is null and void. Argentine law forbids any agreement regarding the future estate.

Real estate or other assets owned by foreign nationals

26. Are real estate or other assets owned by a foreign national subject to your succession laws or the laws of the foreign national’s original country?

Title to real property located in Argentina may only be passed in accordance with Argentine law. It is unclear, however, if this applies solely to transfers between living persons or if it should also apply in the case of transfer by death. However, most Argentinean court decisions have held that it applies to both.

 

27. Do your courts apply the doctrine of renvoi in relation to succession to immovable property?

The Argentine courts may, where the case concerns immovable property located in Argentina, accept a reference back to their jurisdiction; however, this is a complex area of law.

Intestacy

28. What different succession rules, if any, apply to the intestate?

The intestacy succession rules depend on the surviving relatives.

i. There are surviving descendants but there is no surviving spouse. The children are entitled to the entire estate. If any of the children have predeceased but have surviving issue, the share that would have been allocated to that child goes to his or her issue per stirpes (in equal proportions).
ii. There is a surviving spouse and surviving descendants. One-half of the deceased’s “marital” property is distributed to the surviving spouse and the other half is transferred entirely to the children (in relation to marital property, see Question 37). The deceased’s “own” property is distributed in equal portions among all of the children and the surviving spouse.
iii. There are surviving ascendants but no surviving descendants or a surviving spouse. The whole estate passes to the surviving ascendants. In this case, the closer generations exclude the inheritance rights of the further generations (for example, the grandfather is excluded if the father survived).
iv. There is a surviving spouse and surviving ascendants but no descendants. The surviving spouse is entitled to one-half of the marital and one-half of the own property of the deceased. The other half goes to the ascendants.
v. There is a surviving spouse but no surviving ascendants or descendants. The surviving spouse is entitled to the whole estate.
 vi. There are no surviving ascendants or descendants, and there is not a surviving spouse. The collaterals (until the fourth degree of relationship) are entitled to the estate.

29. Is it possible for beneficiaries to challenge the adequacy of their provision under the intestacy rules?

It is not possible for beneficiaries to challenge the adequacy of their provision under the intestacy rules.

Trusts

30. Are trusts (or an alternative structure) recognised in your jurisdiction?

Type of trust and taxation

Law No. 24,441 (Trust Act), enacted in December 1994, established the regulation for trusts in Argentina. Trusts under the Trust Act depend on the concept of revocable property (dominio revocable) and have certain differences with the common law concept of trust.

Generally, the Trust Act considers two types of trusts, a financial trust and an ordinary trust. The difference between the two depends on the person acting as trustee. If it is a financial trust, the trustee must be a financial entity or a corporation specifically authorised by the Argentine Securities Commission to act as financial trustee.

Residence of trusts

In general terms, if the trust is set up under Argentine law, it is deemed a resident of Argentina for tax purposes.

 

31. Does your jurisdiction recognise trusts that are governed by another jurisdiction’s laws and are created for foreign persons?

Argentina recognises trusts that are governed by another jurisdiction’s laws and are created for foreign persons.

32. What are the tax consequences of trustees (for example, of an English trust) becoming resident in/leaving your jurisdiction?

If any foreign entity (including a trust) becomes resident in Argentina, it is subject to tax in the same manner as an Argentine corporation.

33. If your jurisdiction has its own trust law:

– Does the law provide specifically for the creation of non-charitable purpose trusts?
– Does the law restrict the perpetuity period within which gifts in trusts must vest, or the period during which income may be accumulated?
– Can the trust document restrict the beneficiaries’ rights to information about the trust?

Purpose trusts

The Trust Act does not include specific provisions regarding non-charitable purpose trusts. However, Argentine law distinguishes between an act that is gratuitous from an act which is made for a consideration that has certain legal effects such as, for example, a fraud of creditors, which may be relevant in the context of transfers to trusts.

Perpetuities and accumulations

A trust has a maximum term of 30 years from the date on which it was created. The restriction does not apply where the beneficiary is not capable, in which case the trust can extend until the incapacity ceases or the person with the incapacity dies. There are no regulations regarding the period within which income must be accumulated.

Beneficiaries’ rights to information

The Trust Act does not include any information rights in favour of the beneficiary that cannot be contractually restricted. However, the statute does prohibit any provision that would release the trustee from liability incurred due to the non-performance of his duties.

 

34. Does the law in your jurisdiction recognise claims against trust assets by the spouse/civil partner of a settlor or beneficiary on the dissolution of the marriage/partnership?

In relation to marital property, the spouse would not be entitled to claim against trust assets in the case of dissolution of the union (that is, divorce or death of one of the spouses). However, the spouse could, depending on the circumstances, be entitled to make a claim directly against the other spouse at the time of dissolution. When the trust was settled with own property, and the settlor dies, the forced heirship rights apply (see Question 24).

35. To what extent does the law of your jurisdiction allow trusts to be used to shelter assets from the creditors of a settlor or beneficiary?

Where a trust is used to shelter assets from the creditors of a settlor or beneficiary, fraudulent conveyance rules can be used under the Trust Act to invalidate the transaction.

Ownership and familial relationships

Co-ownership

36. What are the laws regarding co-ownership and how do they impact on taxes, succession and estate administration?

The Argentine Civil Code establishes the co-ownership rules (condominio). Those rules do not have any relevant impact on taxes, succession and estate administration, except in connection with the co-ownership rules applicable to the “marital” property, in which one of the spouses is responsible for filing the tax returns on that property. Generally, any co-owner has the right to require the dissolution of the co-ownership (even if it requires the sale of the good). There are few cases in which the right to dissolve the co-ownership does not apply.

Familial relationships

37. What matrimonial regimes in trust or succession law exist in your jurisdiction? Are the rights of cohabitees/civil partners in real estate or other assets protected by law?

Generally, the matrimonial regime in Argentina (which applies to all couples that married in Argentina, as long as their initial domicile was in Argentina) provides that all property (whether tangible or intangible) that was acquired by any of the spouses during the marriage is “marital property” (bienes gananciales). However, property that was received as a gift remains the own property of the spouse that received it. The marital property relates to the marriage “partnership” and, on dissolution, is distributed between the partners (spouses) by halves.

There are no relevant protections for cohabitees or civil partners (except for the case of same-sex civil unions, which were formalised by statute in 2010) (see Question 38).

38. Is there a form of recognised relationship for same-sex couples and how are they treated for tax and succession purposes?

Same-sex unions were legalised by statute in 2010. As this is a recent development, no case law exists. However, regulations passed under the statute establish that the tax and succession treatment must be the same granted to a heterosexual marriage.

39. How are the following terms defined in law:
  • Married?
  • Divorced?
  • Adopted?
  • Legitimate?
  • Civil partnership?

Married

Marriage is defined as a person that is united to another of the opposite sex, as husband or wife, in a consensual and contractual relationship recognised by law, and in which the consent is usually expressed in the presence of a public officer. There are certain “marital duties” that the spouses must comply with (such as fidelity, maintenance payments, and residing in the same house).

Divorced

A divorce is the final termination of a marital union. It is declared by a judge in a formal procedure, and it cancels the marital duties and dissolves the marital “partnership”.

Adopted

An adopted child is one that was taken into a family that is different to the one of its parents after a legal process was followed under the Argentine Adoption Act. The adopted child’s legal rights and obligations towards his natural parents are terminated and similar rights arise with the adoptive parents. Adopted children have the same legal status as children which are not adopted.

Legitimate

Formerly, a distinction was made between “legitimate” children (born from a married couple) and “natural” children (born with no marital union). Although the difference can still be found in certain sections of the Civil Code, legitimate, natural and adopted children have the same rights and status.

Civil partnership

Civil partnership is a legal union or contract, similar to a marriage, between two people of the same sex.

Minority

40. What rules apply during the period when an heir is a minor? Can a minor own assets and who can deal with those assets on the minor’s behalf?

Minors are represented, in general terms, by the surviving parent. If no parent survives, the court designates a representative (curador) to handle all the assets on the minor’s behalf. Disposition of assets usually requires court approval.

Capacity and power of attorney

41. What procedures apply when a person loses capacity? Does your jurisdiction recognise powers of attorney (or their equivalent) made under the law of other jurisdictions?

A court procedure is required to declare that a person has lost his capacity. The court appoints a curator to represent the incompetent person.

Generally, Argentina recognises powers of attorney made under the law of other jurisdictions. However, once a person is declared to have lost his capacity, under Argentine law any and all powers of attorney are terminated.

Proposals for reform

42. Are there any proposals to reform private client law in your jurisdiction?

Currently, a project to amend the Argentine Civil Code is being studied at the Congress. Although the project is complete, it is difficult to tell when (and if) it will be passed. However, although it does have effect on other areas of the civil law, it does not seem to affect significantly private client law.

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