I’d like to thank Astrid Mangual for her comment regarding this topic on www.BoricuaLaw.com, which has prompted me to write about this complex relationship between a testamentary civilist jurisdiction such as Puerto Rico, and Common Law Wills such as those drafted and probated in the United States or elsewhere.
First off, let’s start by stating that there is no such thing as “probate” in Puerto Rico. Wills must comply with such strict legal and notary guidelines that our Civil Code has practically replaced the need for a probate procedure. No legal procedure is necessary for the estate to be partitioned amongst all the heirs if they all convene on how to do so. Unless an executor (“albacea” in Spanish) is designated, the testament itself is enough to transmit the ownership of the totality of the estate to the heirs. With a valid testament, heirs can partition the estate as they see fit.
If by this time you’re asking how creditors are protected if probate doesn’t exist here, know that heirs personally owe all the debts incurred by the deceased if they accept their inheritance. Estates are also tax exempt in Puerto Rico up to $1,000,000.00, so in most cases, estates are tax-free.
Our Civil Code establishes that a testament drafted outside of Puerto Rico must comply with the law of where it is drafted to be valid. If the testament is valid where drafted, it is valid here (31 L.P.R.A. § 2221), just as long as it complies with our local law regarding the institution of heirs in thirds, and does not contain any illegal disposition. If the testament has been probated, then perhaps the best way to apply its distribution of the estate is through an exequatur procedure. But remember, even if valid in another jurisdiction, and legally probated, it must comply with Puerto Rico’s testamentary law.
While in Common Law jurisdictions the disposition of the testator is paramount, in most Civilist jurisdictions, the inclusion of descendants is protected. In Puerto Rico, a third of the estate must be reserved for the “forceful” heirs. A will that leaves the totality of the estate to the surviving spouse must be treated as intestate for the “strict legitimate third”, and the rest of the will is valid as to whatever properties are left to be bequeathed. In order to disinherit a “forceful” heir in Puerto Rico, the testator must expressly exclude the heir in a valid will, and only by applying a cause specified in our Civil Code.
So, to sum up this complex partly intestate partition, the birth of a mixed estate partition may usually require a Declaration of Heirs in order to divide the estate left in Puerto Rico.
Thus, the conditioned treatment of a stateside or foreign will, be it probated or un-probated will must comply with Puertorrican law. If part of the estate that is to be treated as intestate, a Declaration of Heirs is mandatory for that portion of the estate. The remaining two thirds of the estate is to be distributed according to however the foreign will disposes.
As a growing number of expatriates begin to claim their parent’s estates in Puerto Rico, those who expect the estate to be partitioned exactly as their testator wished the estate to be divided amongst his or her heirs, face the sometimes uncomfortable truth that estate partitions in Puerto Rico are completely different from their familiar laws.
Again, thank you Astrid for such an interesting topic that I’ve barely scratched here, so feel free to comment and ask about anything that I’ve written today.