Succession

Estate constitution

What property constitutes an individual’s estate for succession purposes?

In accordance with article 1016 of the Colombian Civil Code, the following allocations must be deducted from the unsettled estate:

  • public advertising of the deceased’s will (if applicable);
  • hereditary credits;
  • outstanding taxes;
  • allocations for child support; and
  • marital share.

 

The result constitutes the net estate available for partition between heirs, which must be performed in accordance with the rules on forced heirship and half of the estate that may be freely assigned by a will.

 

Disposition

To what extent do individuals have freedom of disposition over their estate during their lifetime?

 

Individuals have the freedom to dispose of their state without limitation during their lifetime. However, the disposition of certain assets may require the approval of the other spouse under Colombian marital rules.

 

The general rule for marital property is the community of property regime. This is a regime that automatically comes into effect for all marriages and will remain so until the community of property is liquidated (as a result of either judicial decision or the will of the spouses). In this regime, most community property is owned in common by the spouses. It is different to co-ownership because the spouses (joint owners) do not possess a share in the property but are full owners of the community property.

 

Upon liquidation of the community of property, the entire community property is split into equal shares. Under this regime, the right of a spouse to unilaterally dispose of assets is unlimited. A spouse is entitled to dispose of personal property and the assets of the community of property as he or she sees fit. However, other dispositions may require, as a rule, the approval of the other spouse. This would be the case with real estate property. Some assets expressly excluded from the community of property by the Civil Code are:

  • real estate owned by each spouse before marriage;
  • real estate acquired by each spouse during marriage ‘replacing’ a real estate property owned by the spouse before marriage; and
  • real estate received during marriage as an inheritance.

 

At the time of the dissolution of the community property, each spouse is subject to debts acquired by the community of property and entitled to half the value of the community property. This, again, does not apply to certain properties or rights already owned by each spouse before the marriage.

To what extent do individuals have freedom of disposition over their estate on death?

By executing a will, a person may freely dispose of only half of their estate. The Civil Code contains compulsory portions that cannot be circumvented by will. In the event that no descendants or beneficiaries are entitled to inherit, the testator may freely dispose of the entire estate. Otherwise, the Colombian state through the Colombian Family Welfare Institute will inherit the entire state.

Intestacy

If an individual dies in your jurisdiction without leaving valid instructions for the disposition of the estate, to whom does the estate pass and in what shares?

Colombian law distinguishes between different orders of heirs in an intestate succession. Succession orders or levels determine who inherits and what proportion of the inheritance he or she receives. One level excludes the others. The following table sets out the different orders of heirs in an intestate succession.

Order of heirs

Proportion

Descendants: biological and adopted

Descendants inherit equal portions, not including the surviving spouse’s marital portion

Ancestor and surviving spouse: ancestors of nearest degree exclude the others

Heirs inherit per capita along with the surviving spouse, who receives the marital portion

Siblings and surviving spouse

The inheritance is divided into two parts, one for the brothers and sisters, who receive equal portions, and one for the spouse

Children of brothers and sisters

Equal portions

The state through the Colombian Family Welfare Institute

The entire estate

Adopted and illegitimate children

In relation to the disposition of an individual’s estate, are adopted or illegitimate children treated the same as natural legitimate children and, if not, how may they inherit?

There is no legal distinction between natural and adopted children in terms of estate and succession planning. Natural and adopted children have the same rights and obligations.

 

Distribution

What law governs the distribution of an individual’s estate and does this depend on the type of property within it?

In Colombia, the last residence of the deceased determines the successions applicable law. Colombian rules on forced heirship are mandatory and apply to the estates of all individuals (nationals and foreigners) who die with their last residence in Colombia. Colombian resident heirs and foreign heirs have the same rights and, thus, are entitled to equal treatment in Colombian probate proceedings.

Formalities

What formalities are required for an individual to make a valid will in your jurisdiction?

If the law governing the will is Colombian law, one should bear in mind that the testator is free to assign its properties to his or her legatees but must consider the compulsory portions. Such portions are the part of the estate that, according to the forced heirship law, are assigned to the forced heirs.

Foreign wills

Are foreign wills recognised in your jurisdiction and how is this achieved?

Colombian law and courts recognise foreign wills executed by Colombian nationals provided that:

  • The testator is a Colombian national or a resident foreigner.
  • The will is reviewed and authorised before the Colombian consulate in the jurisdiction it is executed.
  • The witnesses are domiciled in the city in the place where the will is granted.
  • The will is compliant with the law of the jurisdiction in which it is executed.
Administration

Who has the right to administer an estate?

An estate executor is designated to administer the assets and insure the fulfilment of the deceased’s last will. The estate executor must accept such designation; however, if an executor is not designated, the legal heirs are in charge of administering the estate.

How does title to a deceased’s assets pass to the heirs and successors? What are the rules for administration of the estate?

An estate executor is designated to administer the assets and insure the fulfilment of the deceased’s last will. The estate executor must accept such designation; however, if an executor is not designated, the legal heirs are in charge of administering the estate.

 

The administrator of the estate is required to hold the estate assets under deposit. When the inventory and appraisals of the estate are final, the administrator may sell the deceased’s assets to cover any debts or payment of any outstanding taxes and fees.

Challenge

Is there a procedure for disappointed heirs and/or beneficiaries to make a claim against an estate?

A valid will may not be amended after the deceased’s death. The validity and content of a will can be challenged for various reasons, such as the deceased’s lack of capacity or the existence of an heir that was not included in the deceased’s inheritance as a rightful heir under Colombian law. Colombian succession law determines that the testator may freely assign only part of his or her inheritance. Thus, if the testator does not respect the compulsory portions, the judge can still apply the will and change its content in order to assign to the heirs the portions that they are legally entitled to under Colombia’s mandatory heirship laws.

 

Law stated date

Correct on:

Give the date on which the information above is accurate.

9 November 2020