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| Wills, Inheritance, and Estate Planning in Chile |
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You have most likely at one time or another come across stories where someone dies and leaves their entire estate to the family dog. You don't get to do that under inheritance laws in Chile. The Chilean inheritance law are specifically designed to keep someone that dies from disinheriting immediate family members and leaving them penniless, regardless if you like your family member or not. They also serve the function to some degree of greatly simplifying probate in the Chilean legal system.
The basic order of inheritance in Chile after someone dies is that of surviving spouse, children, parents, grandparents, siblings, and then cousins. This also includes rights of spouses and children of the direct ascendant or decedent. So, if you don't like your stepmother, you might be stuck giving her a portion of your estate. You are allowed to give a certain percentage of your estate in a will to whom ever you like, but for the most part you can not void these family members rights to a portion of your estate by just drafting a will. There are certain exceptions such as in the case of murder of one family member by another, but they are rare exceptions. If you wish to transfer property to specific family members, you will need to do it while you are still alive or through some intermediate structure such as corporation. Even here, you must be careful as there are certain restrictions. The right to testate ( make one´s will known ) and to whom the testator can leave their assets.In Chile the granting of a Will is very restricted. There is no absolute freedom to dispose of ones assets as one wishes, because the Law compels the testator to make some forced designations in favor of specific people. If the will does not comply with fulfilling these requirements under Chilean law, the will is considered without force or void. Likewise, if no will exist these forced heirs do not loose their right to inherit their mandatory portion of the estate. Further, your will must meet Chilean laws regarding formalities for the creation of a will. It is considered a “formal” or “solemn” act, and thus creation of a will to be valid must meet very specific processes and procedures in relation to notaries, whom may qualify as a witness, residency requirements, language used, methods of declaration, just to name a few. Do not scribble your Chilean will on napkin over lunch and then expect anyone to give it authority should you meet your untimely demise. In most cases, wills in Chile must follow formal declarations in front of a notary public ( minster of faith ), and must be drafted meeting very specific requirements to be valid, and the witnesses must meet very specific requirements regarding their residency ( municipal residency and national residency) and the natural language you use to declare your will. These become all the more complicated when foreigners are involved as the testator, or as the witnesses. Make sure your friends or family members qualify to be a witnesses under Chilean law for the purposes of signing a will. The mandatory designations and heirs are proportioned along the following lines: The first mandatory proportioning of the estate covers all debt related to alimony and child support that the deceased may have owed up to the time of their death. These must be deducted from the total assets of the estate before distribution of other assets to other heirs. The remaining assets must be divided and apportioned to specific heirs according to the regulations established by Chilean Law. Fifty percent of the assets must go to the rightful heirs also called “forced heirs” (spouse, direct descendants, or ascendants). Twenty five percent of the assets are called the “quarter of improvement” and it may be given to any of the forced heirs at the discretion of the tester. The last twenty five percent is called “quarter of free disposition” and may be given to anyone the testator wishes. People eligible as heirs and forced heirs in Chile.In Chilean legislation the designation of an inheritance by a Will is the act done by the testator where he/she disposes of his/her assets, appointing heirs or legatees. The assets and debts of the deceased are passed on according to the following order of succession: First Order: The direct descendants and surviving spouse. In the case where these descendants are also deceased, the rightful heirs are their direct descendants. In other word the testators grandchildren. Second Order: If there are no direct descendants, the rightful heirs are the parents or the closest related ascendants and the surviving spouse. In the case where the father, mother and surviving spouse have deceased, the rightful heirs would be the testators living grandparent. In the situation that these also have deceased then it becomes the testator´s living great grandparents. Third Order: If any of the above are deceased, the rightful heirs are the testator´s brothers and sisters either these be from the same mother and father, or be a half sibling. In the case where these are deceased, the rightful heirs would be the brother´s or sister´s children. In other words, the testator´s nieces and nephews. Fourth Order: If any of the above are deceased or do no exist, the rightful heirs would correspond to the closest blood relative descended from the same origin without being a direct ascendant or descendant of the testator. This would be uncles and aunts, and if these are deceased the cousins would be the heirs. This article is only intended to give you a basic appreciation of the complex nature of estate planning in Chile. We strongly urge you to seek competent legal assistance of a qualified Chilean attorney in relation to Chilean inheritance laws, and to the unique issues that effect foreigners in Chile in regards to estate planning. With time and planning there are ways to insure that much of your estate goes to the person you wish after you pass away. Again, time and careful planning are essential. About the Author: Attorney Zandra Valenzuela is the head of the legal department of Spencer Global international consulting, and is currently a professor of international and public law at several universities in Chile. Please feel free to contact her by email or the phone numbers listed on our web site for a free consulation about your estate planning in Chile. |
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