Who inherits in Puerto Rico in the absence of a will?
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.
October 11th, 2007 at 1:50 pm
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.
October 11th, 2007 at 4:57 pm
Thank you for your comment!! I will answer your question on my new blog dedicated to estate matters in Puerto Rico: 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.