Martin Grosz
05/05/2021 6:00 AM
Clarín.com
Services
Updated 05/05/2021 6:00 AM
The coronavirus has already caused more than
65 thousand deaths
in the country.
And of the
2.7 million
recovered there are those who were saved by very little.
The shock of the pandemic led many to think about the possibility of losing their lives.
What will happen
the day after
with those who remain and how
that scenario
can be
designed
.
On the estate side, the effect was a renewed interest in how to make
wills
.
The house, the car, the savings, the jewelry, the furniture ... All
the assets
that a person accumulates throughout his life make up an estate that, after death, must be distributed as an inheritance.
The question is
who will receive what
(or
how much
), according to what the law establishes.
And what possibilities are there to
modify that distribution
if the person considers that it would not fully conform to his will.
That is what wills are made for.
Sometimes it is a matter of
including heirs
that are not provided for in the law.
Other times, to
displace
others that are planned, or to ensure that some of them
receive more than others
, among other possibilities.
"During the pandemic
the realization of wills
multiplied
and
consultations
on the subject
also grew notoriously
, as a result of the fact that people faced the possibility of ceasing to exist as never before,"
Ricardo Blanco Lara, prosecutor of the College of Notaries
, commented to
Clarín
of the City of Buenos Aires.
With wills, it is often sought to favor the spouse or a child in the distribution of the inheritance.
Photo Shutterstock
But can a person choose the
post mortem
destiny
of his entire estate or only part of it?
And
how should
a will be made so that the wills it contains are taken into account in the probate trial?
Also, is it enough to leave a
signed letter
in a drawer or do you have to hire a
notary public
?
And in the latter case, what are the advantages and how much does it cost?
These and many other frequent doubts about the question will be answered below in this article, which was prepared with the advice of the Buenos Aires Notaries Association.
In short, what is a will and what is it for?
The will is a
document
by which a person indicates to whom or to whom he will leave all or part of his estate when he dies.
That is, a person makes and signs a living will to specify who will have the
right to inherit
their assets and who will not.
Legally, whoever
establishes his will
in this way is known as a "
testator
."
And those who will be able to receive your possessions after death are called "
beneficiaries
."
Who inherits a person's assets if there is no will?
The law expressly determines who the heirs of a deceased person are.
On the one hand, there are
forced heirs
.
They are so called because, except in exceptional cases, they cannot be excluded from the inheritance, since the law protects them with the benefit of the “
legitimate
” (a portion that corresponds to them to inherit).
These are:
The descendants: children, grandchildren, great-grandchildren ...
The ancestors: parents, grandparents, great-grandparents ...
The husband
On the other hand, there are
collateral relatives
, who are the ones who have the right to receive the inheritance if there are no forced heirs and if there is no will that provides otherwise.
Siblings
,
uncles
, nephews, and cousins
fall into this category
.
Finally, if there are no forced heirs or other relatives, what is known as a "
vacant inheritance
"
is generated
.
And the assets of the person end up in the hands of the
State
.
When there are no heirs or a will, a person's assets are kept by the State.
Photo Shutterstock
What can be changed by making a will?
Forced heirs or "heirs" cannot be disinherited without cause.
At most, through a will,
your portion
of the inheritance
may be
reduced
to the
legal minimum provided
, benefiting other heirs.
Different is the case of collateral relatives, who can be
displaced
from all benefits by means of a will.
When there are no forced heirs, then, a person can decide by will on the destination that he will have
100% of his estate
after his death, thus ensuring that it is not in the hands of
distant relatives
or the
State
.
However, when there are
forced heirs
, the person can only freely define who will keep
a
limited
part
of their assets (
33.3%
), but not all.
In these cases, the will
may not affect the 66.6%
that corresponds to the children (or, in the absence of children, 50% with respect to the spouse and parents).
This has been the case since the new Civil and Commercial Code of the Nation came into force in 2015.
Before, for those who had descendants, the portion available to distribute by will was less: a
fifth
.
Today is a third.
There are people who write wills and keep them at home for a family member to find after they die.
Photo Shutterstock
In wills you can simply indicate what
percentage
will correspond to each of the assets that the testator has at the time of death.
This is the most common.
But you can also establish
specific "legacies"
for certain people or institutions: that the house in Mar del Plata is for that child, that the car is left to the spouse, and so on.
What are the most common uses of wills?
"Not having forced heirs, whoever makes a will usually wants to name an instituted heir so that the inheritance is not vacant and, consequently, that their assets
remain with the State,
" explained Blanco Lara, who is a graduate professor at the Faculty of Law of the UBA.
"They prefer, for example, to benefit
friends
or
public
welfare
institutions
," he mentioned.
For those who have forced heirs, meanwhile, the most common case is the intention to benefit with the available portion (one third)
a child
who is in worse conditions than others, the
spouse
or
grandchildren
, according to the notary.
Although they do occur, he added, the cases of people who ask to make wills to favor
lovers
or couples with whom they have not married, or
unrecognized
extramarital children
, are much less common
.
What types of wills are there?
Argentine law recognizes two valid ways to establish the will of a person regarding how their assets should be distributed upon death:
-
Handwritten will
.
It is known in legal jargon as a "holograph."
It must be drawn up and signed by the testator in handwriting on a sheet of paper or any other physical medium.
-
Will by public deed
.
It is granted before a notary public in the presence of two witnesses.
Making a will by deed can be expensive, but it has several advantages.
Photo Shutterstock
What must holographic wills look like to be valid?
For a
holographic
will to
be respected, it must go through three steps:
1 °) That some heir finds the will and appears with him in Courts.
In this way it may be admitted, first undergoing a
calligraphic skill
to verify that the handwriting and signature are really those of the testator.
2 °) The writing already appraised must be
fully
transcribed
in a
deed
by a notary appointed by the judge, with costs that will be borne by the heirs (they are deducted from the inheritance).
3 °) Finally, with the testament already passed to writing, the trial will then begin taking into account the last will of the deceased regarding the destination of their assets.
On the other hand, whoever writes his own will must ensure that it contains the
date
, the
place
, the
signature
and clearly expressed wills that respect the criteria established by law regarding the distribution of assets.
Although it is not mandatory, there are those who go to a notary with the will to
certify the signature
and register it in a
register
that the judges usually consult when initiating a succession to know if the deceased left a will without anyone knowing, a situation very common.
The procedure costs about
$ 5,000
.
How do public deed wills work and how much do they cost?
Wills by public deed are drawn up by a
notary public
based on the will expressed by the testator.
In order to be carried out, it is necessary to go to the clerk's office (or the clerk to go home) counting on two
witnesses
, who must know the person, but cannot be related to either the testator or the notary public.
Friends
or
neighbors
usually go
.
Once signed, the testator only takes
a copy
or testimony of the will.
The original is
saved
.
In addition, in Capital, the testament is registered in the
Register of Last Will Acts of
the College of Notaries.
This allows that, when the succession is opened, the judge can make a query to find out if the person left a will without anyone knowing.
The original wills are kept in the College of Notaries and the testator keeps a copy.
Photo Clarín Archive
In the Province of Buenos Aires there is also a Registry of Wills and the same happens in the rest of the country.
Therefore, in these cases
there is no chance
that the will will
be lost
, as sometimes happens with those that are handwritten and are not registered.
How much does it cost today to make a will by public deed?
In the simplest cases, when heirs are simply designated and
a
percentage
is established
for each one, in Capital they are paid:
$ 30 thousand
of fees
$ 2,000
to $ 2,500 for writing expenses
$ 2,050
fee for registration in the Registry
When the person, on the other hand, wants to
designate specifically
who will keep each of their assets (the house for one child, the car for the other, etc.) the operation can be more expensive.
In those cases the notaries charge:
1.2% of the value
of the goods in question
$ 2,000
to $ 2,500 for writing expenses
Up to
$ 6,000
fee for registration in the Registry
In the Buenos Aires Notaries Association, they stand out, however, that they have a solidarity program so that those who
do not have resources
can also carry out the procedure.
Can an already made will be annulled or changed?
Yes. The person who makes a will can
revoke
or
modify it at any
time.
Simply make the changes with the clerk and re-enroll.
"In general, the requests are to make new wills, few people ask for modifications, which were previously called" codiciles, "said Blanco Lara.
"They do them mainly in the face of what they understand as
bad behavior
by an heir, to remove it from the will or reduce its share," added the notary public.
The will that is taken into account for the succession is the last one made by the person.
Photo Shutterstock
What if a person left more than one will?
In these cases, the
most recent
dated will is considered to be the
valid one.
If there is a more current one, all the previous ones are
revoked
.
Can bequests to public good institutions be included in the will?
Yes. In fact, there is an initiative called Solidarity Legacies that encourages people to leave certain assets to charitable non-profit organizations, thus making them a kind of "
future donation
".
In this way, it is possible to include in the will
bequests,
for example, for Unicef, Cáritas, Doctors Without Borders, AMIA, Obra Don Orione, the Gottau Foundation and the Sales Foundation.
To find out about this possibility, you must go to the website leados-solidarios.org.
Bequests can be included in the will to support charitable causes, such as Doctors Without Borders.
Photo Mohamad Cheblak / MSF
Is it possible to distribute your own assets in life, instead of making a will?
Yes. For that there are
donations
, used many times to distribute the assets during life among the forced heirs or transfer them to other people.
The regime that regulates these operations was modified last December, to make them more secure.
For a donation to be valid, the recipient must accept it.
And if the donated property is a property, the donation must be made through a
public deed
drawn up by a notary public.
MG
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