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Designing the inheritance: how to make a will so that it is valid and respected

2021-05-06T01:34:32.432Z

It allows you to choose who will receive your property after death. Options, costs and all the keys.



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

Look also

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Moving to the Coast and telecommuting: how much does it cost to buy a house or an apartment near the sea

Source: clarin

All news articles on 2021-05-06

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