This question is part of the ten most asked questions regarding legal matters in Puerto Rico. So many potential clients ask this question that it is considered a very common petition in PR courts.
What is a “Declaratoria de Herederos”?
When someone in Puerto Rico, or with properties in Puerto Rico, passes away without leaving behind a will (intestate), it is necessary to petition a “Declaratoria de Herederos” or Declaration of Heirs in Court. This court ordered document determines who will inherit from the deceased, in the sucesoral order according to the Puerto Rico Civil Code.
How is a Declaration of Heirs granted?
This document is a non-adversarial petition, which means that there is no “John Doe vs. Jane Doe”, because there is no controversy as to whom is to inherit (also known as an Ex-parte petition because there is only one party: the petitioner). All that is filed in court is a written petition that says something along the lines of: “Hello, Mr. Judge. Mr. John Doe died without a will, married Jane Doe, and together they had three children: John, Jr., Janey and Luis. All three children are the sole heirs of John Doe’s estate. Thank you.” That’s it.
What additional documents are needed?
In order to provide evidence of what is stated in the petition, it is necessary to include the folowing documents to prove what is written in the Petition, such as:
- Death Certificate of the deceased.
- Marriage Certificate of the widow (or widower), if any.
- Birth Certificate of the Heirs.
- A Puerto Rico Will Registry Negative Certification to evidence that the person died without leaving a will.
How long do Declarations of Heir take to be granted?
Not long, in legal time. They take more or less 6 to weeks from the time that they are filed in court, to when the court grants the “Resolución”, or Resolution.
Once the Declaration of Heirs is granted by the court, is the Estate mine?
NO. The Declaration of Heirs only states who is heir in the estate, not how much each heir is entitled to, or what is entitled to each. This document serves to evidence that the Estate exists, both as a legal entity (called a Sucesión in PR), or that a Succesoral Community (a group of heirs who co-own properties) is born. Once the court grants the Resolution, the heirs must convene on how to distrtibute the properties within the Estate.
Who can apply for a Declaration of Heirs?
Anyone with a legitimate interest in the Estate. Since no controversy is decided by the Declaration, any interested party can apply for it.
Can Real Estate, Bank Accounts, or asssets be sold or spent by an heir without the Declaration of Heirs?
NO. Without determining who is an heir to an estate, it is illegal in Puerto Rico to dispose of estate properties, and whomever does so has to reimburse the heirs.
Mom and Dad both passed away. Can I include both in a single Declaration of Heirs?
NO. A while back, it used to be done, but from a few years on, PR State Courts require that two Declarations be filed: one for Dad and one for Mom, even if the heirs in both are exactly the same. It may be possible that the assets left behind by Dad are different than those left by Mom, so Courts ask that filings be separated by deceased.
What if Mom and Dad had a son, and that son had two children, and that son died before Mom and Dad died, and he didn’t leave behind a will…
Well, a Declaration of Heirs is needed for each person deceased without a will. Period. Every son of the son of the daughter of the nephew of the grandfather that did not leave a will needs his and her own Declaration of Heirs.
It might sound like a lot of work, or very complicated, but that’s how estate matters are in Puerto Rico, and why they’re so much fun to deal with.
Since lack of a will is key to the topic, it would be useful to see commentary on how Puerto Rico treats a legally probated will from one of the United States or a foreign country with regard to intestacy and the need for Declarations of Heirs.
Thank you for your comment!! I will answer your question on my new blog dedicated to estate matters in Puerto Rico: http://www.mortiscausa.com
The validity of a will drafted and probated outside PR is a very complex matter, given the strict legal standards of a notarize, registered and valid will here, but it is possible to grant full faith and credit to wills from other states or countries. The “how” is the next topic that I will cover in MortisCausa.com.
How does a non resident of Puerto Rico apply for a declaration of inheritance, and what is the cost? In addition, does the birth certificate have to be original copies?
Thank you for your question.
It is very difficult for a non-resident to apply for a Declaration of Heirs, since it requires drafting a Petition to the Court (Tribunal de Primera Instancia), and the inclusion of several documents, most of them in Spanish. This is why I usually suggest retaining legal counsel for this matter.
The cost depends directly on the complexity of the filing, the amount of heirs the decedent has left, and whether or not he/she was married at the time of passing.
Every document included in the filing MUST be in original form. The court will not accept photocopies, unless extreme circumstances exist, such as in the case of cuban birth certificates issued many years ago, which are very difficult to obtain.
If you need further assistance on this matter, feel free to contact me.
I need to apply for a declaration of inheritance do i need to travel to puerto rico to do it or can it be done by an attorney on my behalf.
Thank you for your question.
Applying for a Declaration of Heirs can be done from the U.S., but the different document requirements, and formalities of the filing make the document a little complicated for a lay person to file from outside of Puerto Rico. In addition, the document should be filed in Spanish. Although the PR Rules of Civil Procedure now allow filings in English, I have yet to see on. Oftentimes, it is cheaper, easier and faster to retain an attorney in Puerto Rico, and have the attorney file for the Declaration.
If a person leaves no will and has no living parents, spouse or children would their brothers or sister be entitled to his estate
Dear Evelyn,
Thank you for your question.
If you do not have any children, nor living parents, then you do not have forceful heirs. You can choose anyone you wish to inherit your estate by drafting a valid will. Keep in mind that the will must either abide by PR estate law, or be valid in the jurisdiction where you reside. I suggest that you consult with legal counsel before drafting the will, just to be sure.
A relative in Puerto Rico died without a will. Some of the legal heirs filed their Declaration and the court issued a Resolution naming them the legal heirs.
Subsequently, other legal heirs notified the court, but have not provided a Declaration of heirs or any other legal documentation necessary to be included in the Courts Resolution.
What is the statute of limitations for these other heirs to file the necessary paperwork to participate in the estate distribution.
If they fail to do so in the required timeframe will the estate be distributed to the heirs who did provide the paperwork and are named in the Resolution.
Everything is frozen at this point and it seems there is no way to hold those making a claim to file their paperwork under any deadline.
Thank you.
Dear Mr. Schaffer, thank you for your question.
There is no statute of limitations for heirs to claim the estate. In fact, the right to claim an estate is carried over into each subsequent generation, and sometimes estate matters involve multi-generational members of deceased heirs.
If there is a court filing, the court may dismiss the filing for lack of compliance, but the right to claim the estate will never expire.