Seek Advice Before Making Will, Experts Say
Residency papers and house titles aren’t the only documents new – or seasoned – residents of Costa Rica should keep in mind.
The last will and testament (in Spanish, testamento) of a foreigner who lives or has assets in Costa Rica is subject to the country’s laws, making it important to seek legal advice to ensure last wishes are carried out.
According to lawyer Francisco Luis Vargas, a specialist in inheritance law, the country’s Civil Code requires that wills make provisions for a surviving spouse and any underage children, so a will that fails to meet these requirements could be partially or totally annulled by a judge. Therefore, it’s crucial that new residents have a lawyer familiar with Costa Rica’s Civil Code review their foreign wills to determine whether they need adjustments, Vargas said.
Olman Arguedas, a lawyer, University of Costa Rica (UCR) law professor and former judge, said the simplest solution in some cases is to create a new will in Costa Rica, since the execution of foreign wills here, even those that are duly validated by the Foreign Ministry, can involve a complex judicial process.
“If (a foreigner) is going to live here in Costa Rica, it’s better to enact another will here,” Arguedas told The Tico Times.
To be valid, a will in a language other Spanish must be translated by an official translator listed at the Foreign Ministry, housed at the Casa Amarilla in San José (233-5022).Authentication of the document is also required by the ministry, though specific requirements can vary depending on the country of origin, so anyone who wants to validate a foreign will for Costa Rica should contact the ministry before moving here, Arguedas said.
The Civil Code, which dates to 1886, requires that 50% of the total assets acquired by both spouses since marriage be willed to the deceased person’s spouse. Certain exceptions exist: a couple can draw up a legal document that mutually waives their rights to that percentage; and assets in possession before marriage, or inherited or received as a gift at any time, aren’t touched by this rule.
Otherwise, however, assets earned or acquired after marriage are considered common patrimony of the couple, Vargas said.
Upon the death of one spouse, 50% of the total accumulated assets become the property of the surviving spouse, while the remaining 50% can be distributed as the author of the will desires – no matter which spouse earned the funds.
“If I die and I have no assets, because they’re all in the name of my spouse but were acquired during the marriage, I can leave half to a friend (in my will),”Vargas said.
Any will must also provide the surviving spouse with funds for alimony, or alimentos – which literally translated means food, but in this case also includes clothing and education – for any children under 18 (or 25, if the son or daughter is still a student). The exact amount is determined by a judge.
“Calculating (the amount) is difficult,” Vargas said.“It would have to be done once the person has died. It’d be adjusted by a judge.”
For example, if a will is drawn up leaving a certain amount for alimentos, but the person who made the will does not die for 10 years, the age of the child in question, inflation and other factors may make the amount specified in the will inappropriate, making it likely a judge will revise the amount.
The surviving spouse receives the funds for the children’s care, though the Child Welfare Office (PANI) is responsible for checking they are being correctly used, Vargas said.
If a person dies without a will, the Civil Code outlines the order of inheritance, starting with the spouse (50% of all assets earned after the marriage), children, and parents; then continuing, if none of the above survive the deceased, to siblings, nieces and nephews, uncles and aunts; and, finally, if no surviving relatives can be found, to the government.
Living wills – documents in which people can specify the medical measures they want taken in the event that a medical condition prevents them from expressing their wishes – are not valid under Costa Rican law, which also prohibits euthanasia, though some doctors may choose to honor patients’ or families’ wishes regardless. People who want to avoid heroic measures should make sure their doctors know how they feel and consider drawing up a testamento en vida expressing their wishes; though not legally valid, it may help health-care professionals to have more information about what the patient would have wanted (TT, April 8, 2005).
Because the requirements for wills here differ from those of many other countries – where, for example, the law may require provisions for adult heirs or allow a person to will all their assets to charity instead of his or her spouse – foreigners living in Costa Rica, whether or not they have residency, may spark complicated legal situations if their wills violate national law.
Vargas said the most important consideration is the location of the assets belonging to the deceased. In general, the law of the country where the assets are located will take precedence. For example, a will drawn up in Canada by a citizen of that country who retires to Costa Rica but leaves her assets in Canada would not suffer any changes if the Canadian dies here.
However, it’s not cut and dried, he said; “it’s a question of international law.”
Because of these complications, anyone with a will who plans to reside in Costa Rica or bring assets here should find a lawyer specializing in inheritance law (derecho sucesorio) to review his or her testament.
Those wishing to set up other mechanisms, such as a trust fund (fideicomiso), should be sure to find a lawyer familiar with the requirements for such an act as well as the rules for wills, to ensure the two do not contradict each other, Vargas said.
People who wish to draw up wills in Costa Rica should seek legal advice as well to ensure the document meets the many requirements, Vargas said. For example, a will that specifies the date and location it was drawn up, but not the time of day, would be invalid here, and having the incorrect number of witnesses (which can vary from three to six, depending on the type of will) would invalidate the will as well.
“You can do it without the presence of an attorney, but the risk you run is that an error is made,” Vargas said.
All wills in Costa Rica must be drawn up in Spanish, those without the command of Spanish necessary to handle legal jargon should bring two interpreters as required by law, he added.
Arguedas, who recommends drawing up a Costa Rican will to avoid confusion, said it’s important to tell the lawyer or notary handling the will about any previous wills existing in other countries, so he or she can provide well-informed advice.
For a simple, straightforward will, people can expect to pay about $500, though it can be much more if the will is complex and translations are needed.
Ana Hernández, head of member services at the Costa Rican Residents’ Association, said the organization’s legal services to members generally focus on obtaining Costa Rican residency, but can include legal help with wills if members need it.
“We have a good team of lawyers,” she said, adding that more information on membership ($100 per year) is available at www.arcr.net.