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Wills and probate
What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?
By executing a will, a person may freely dispose of only part of their estate, which normally is one-fourth. The Civil Code contains compulsory portions that cannot be circumvented by will.
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. The Civil Code forces the testator to assign certain compulsory portions, even against his or her will.
The following are the compulsory portions:
- maintenance provided by law;
- the marital portion;
- the legitimate; and
- the fourth of improvements in the succession for the descendants.
‘Maintenance provided by law’ is owed in an amount for the subsistence of the beneficiary in a way that corresponds to his or her standard of living. Individuals entitled to maintenance include the spouse, descendants, ancestors and siblings. The amount of maintenance will be assessed by a judge.
The ‘marital portion’ is the portion of the estate that the law assigns to the surviving spouse or permanent partner lacking the necessary means for a congruent subsistence. Taking into account the existence of any legitimate descendants, the widower or widow will be counted among the children and receive as marital portion a share equivalent to the legitimate rigorous corresponding the legitimate descendants.
The ‘legitimate’ is that part of the estate of a deceased individual that the law assigns to the legal heirs. The following are legal heirs: children (personally or represented by their descendants) and ancestors. The legitimate is obtained by dividing half of the inheritance between all legitimate descendants and the widow or widower. The legal heirs converge to the succession and are excluded and represented according to the order and rules of the intestate succession.
The ‘fourth of improvements’ is the portion that the law designates to increase the portion of the descendants. The testator may, at their discretion, favour the descendant or descendants that they prefer assigning this portion in the proportion desired. This is the only use allowed to the fourth of improvements. Should there be no legitimate descendants entitled to inherit this fourth part of the inheritance, it will increase the freely disposable portion.
If there were no descendants, the deceased’s estate shall be divided in four parts: two of them as the estate to be assigned to the legal heirs, one fourth as improvements and the other fourth to be used by the testator at his or her free will.
What rules and procedures govern intestacy?
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. For this reason, there are no specific rules and procedures governing intestacy in Colombia (unlike many common law jurisdictions).
What rules and restrictions (if any) apply to the governing law of a will?
The following rules and restrictions apply:
- the last residence of the deceased determines the succession's applicable law; and
- 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, go to the forced heirs.
What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?
Solemn and nuncupative wills shall be executed before a notary and three witnesses. Their essential element is that the testator discloses their provisions to the notary and the witnesses.
The notary will state on the cover, under the epigraph, that the testator is of sound mind, and mentions his or her full name, domicile, names of the witnesses, and the place and exact date of the grant. Lastly, the testator, the witnesses and the notary will sign the cover. If the testator is unable to sign at the time of the grant, a person other than the instrumental witnesses shall sign.
Validity and amendment
How can the validity of a will be challenged? Can the will be amended after the decedent’s death?
Under Colombian law, 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.
How is the validity of a will established in your jurisdiction?
Colombian law recognises two types of will:
- the solemn and nuncupative will; and
- the solemn sealed will.
Solemn and nuncupative will
The solemn and nuncupative will must be executed before the notary and three witnesses. Its essential element is that the testator discloses its provisions to the notary and the witnesses.
It may have been previously written but shall nevertheless be read aloud by the notary.
Lastly the testator, the witnesses and the notary execute the will. If the testator cannot sign, this circumstance shall be mentioned in the testament stating the cause.
Solemn sealed will
The solemn sealed will shall be executed before a notary and five witnesses. Its essential element is the act by which the testator presents to the notary and the witnesses a closed deed. The testator has to declare, in a way that the notary and the witnesses see, hear and understand, that the said deed contains its will.
The will shall be executed by the testator. Its envelope shall be closed or externally closed, so that it cannot be extracted without breaking the envelope. It is up to the testator to place a seal or mark, or to use any other means to secure the envelope. The notary will state on the envelope, under the epigraph that the testator is of sound mind, his or her full name, domicile, names of the witnesses, and the place, and exact date of the grant. Lastly, the testator, the witnesses and the notary will sign the envelope. If the testator is unable to sign at the time of the granting, a person other than the instrumental witnesses shall sign.
To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?
Foreign wills are recognised by Colombian law provided that:
- the will is dully is authorised before a Colombian consulate;
- witnesses of the will are domiciled in the location where the will is granted; and
- the rules of a solemn will under Colombian law are observed.
What rules and procedures govern:
(a) The appointment of estate administrators?
The administration of the estate shall be carried out through an estate executor.
(b) Consolidation and administration of the estate?
Under Colombian law, 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 heirs are in charge of administering the estate.
(c) Distribution of the estate to heirs?
Colombian law distinguishes between different orders of heirs in an intestate succession. Succession orders or levels determine who inherits and in which proportion. One level excludes the others. The following table sets forth the different orders of heirs in an intestate succession:
Order of heirs
Descendants: biological and adopted
Descendants inherit equal portions and not including the surviving spouse's marital portion
Ancestor and surviving spouse: ancestors of nearest degree exclude the others
In this order, 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 that receive equal portions and one for the spouse
Children of brothers and sisters
The state through Colombian Family Welfare Institute
The entire estate
(d) Settlement of the decedent’s debts and payment of any taxes and fees?
The settlement of the deceased's debts and payments of taxes apply as follows:
- 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 in order to cover any debts or payment of any taxes and fees.
- The unsettled estate is subject to income tax at a 33% rate until the inheritance is finally distributed to its heirs. Estate executors are required to comply will all formal tax obligations (eg, filing tax returns) and to pay all outstanding taxes.
- Once the inheritance is distributed among all heirs, such distribution is subject to capital gains tax at a 10% rate. However, in some cases part of the inheritance may be considered as exempted income.
Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?
This must be analysed on a standalone basis.
Capacity and power of attorney
Loss of capacity
What rules, restrictions and procedures govern the management of an individual’s affairs where he or she loses capacity and the grant of power of attorney in such cases?
Under Colombian law, any individual is subject to legal rights and obligations except for individuals deemed to be incapable by a Colombian judge after a medical evaluation and due process.
An individual may be declared as incapable by means of a voluntary interdiction action whereby a judge may declare that an individual is unfit to exert his or her own rights or obligations. If an individual is declared unfit to handle their own affairs, the judge will designate a guardian to take care of the individual's affairs.
What rules, restrictions and procedures govern the holding and management of a minor’s assets until the minor reaches the age of capacity?
Colombian family law grants the parents of a child usufruct over the property of the child, save for some exceptions, such as the assets acquired by the child because of his or her work, or received by the child as a result of an inheritance, legacy or gifts. In addition, Colombian family law grants the parents a right to administer the property of their children, except for the assets acquired by the child because of his or her work.
Once a child becomes of legal age (ie, 18 years old) and the parental powers over a child terminate, the parents are required to give full account of and hand over the property to the child. Parents are liable for any damage or reduction in the property of the child administered by them resulting from their negligence or wilful misconduct. They must therefore act in a careful and faithful manner. The administration of the child’s property by the parents can be subject to review by the authorities. Apart from establishing specific regulations regarding the administration of the property, authorities may, as an ultimate measure, appoint a legal guardian for the administration of the child’s property.
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