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Can I leave everything to my cat in Puerto Rico?

May 14, 2008 By: Christian M. Frank Fas Category: Estates No Comments →

If I die, can my cat Fluffy inherit all my fortune?

In Puerto Rico, instead of regarding the intentions of the testator as paramount, the inclusion of forced heirs is protected under our inheritance laws. While in Common Law jurisdictions, such as most of the United States, the final dispositions of the testator are protected, the inclusion of the forced heirs is necessary for a will to have complete validity. Although a will where the forced heirs are not included is not completely invalidated, a portion of the estate must be set aside for them to inherit in preferential order. That means that forced heirs get to inherit first, and anyone else named in the will as heir must wait in line until after they have received their birthright.

What is a Forced Heir?

Forced heirs are defined by our Civil Code article 736 (31 L.P.R.A. § 2362), and are all the descendants of the testator. In plain English, descendants are all the offspring, be it born within or outside of matrimony, designated by birth from the testator to infinity. In other words, great-great-great-great-great-grandchildren are forced heirs.

If the testator does not leave behind any descendants, then the forced heirs are his ascendants. Ascendants are the parents, grandparents and great-grandparents of the testator, and are divided into two separate lines: the father’s side and the mother’s side. Any one ascendant that survives a testator without descendants must be named as an heir in a testament.

If the testator does not have any descendants or ascendants, then he or she has no forced heirs, and can leave everything within his or her estate to whomever he or she pleases, according to our Civil Code article 692 (31 L.P.R.A. § 2281).

The purpose of forced heirship in Civilist jurisdictions, such as our own, is to keep the estate within a single family, and to provide a means of economic sustenance by inheritance. This, in turn, aids in the distribution of wealth between families, and prevents the government from having to provide welfare to someone who might be disinherited impulsively.

Even without forced heirs, the testator must leave his or her estate to a person, be it a natural person such as a human, or to a legal entity as a non-profit organization. Animals, such as cat, cannot inherit in Puerto Rico.

Fluffy might be one thing that loves me the most in this world, but unfortunately, I cannot name him as sole heir in my estate. Hey, I could set up a trust fund to take care of Fluffy, but that would be a whole other topic to write about further on…

Do I really need a lawyer to divide an estate?

May 08, 2008 By: Christian M. Frank Fas Category: Estates No Comments →

Actually, this is a simple question.

No, a lawyer is NOT needed to divide an estate.

PR Civil Code Article 1006 (31 L.P.R.A. § 2872) states that any heir who has no legal impairment to dispose of his/her property can ask that their inheritance be divided.

The only problem is that ALL the heirs must convene on dividing the estate. If everyone gets along, and there are no qualms on how to divide the estate, then a lawyer isn’t really necessary.

Now, when one or more heirs refuse to cooperate, or the estate is complex in nature, an attorney that handles Estate matters in Puerto Rico can be an invaluable source to oversee that the process is handled correctly.

When do Child Support payments end in Puerto Rico?

May 04, 2008 By: Christian M. Frank Fas Category: Child Support No Comments →

twentyone.jpgThe obligation to provide Child Support payments in Puerto Rico ceases when the minor reaches adulthood.

In Puerto Rico, that age is 21.

Even if the original Child Support Order issued in another jurisdiction states that the obligation ends when the minor reaches the age of 18, if the Child Support payments are reviewed in Puerto Rico, the age when the payments cease is automatically extended until the minor reaches the age of 21.

So remember:

Child Support payments in Puerto Rico end at 21 years.

Cambio de teléfono de BoricuaLaw en Nueva York

February 09, 2008 By: Christian M. Frank Fas Category: Announcements, Noticias No Comments →

startac.jpgOtra vez con un nuevo teléfono. Aprovecho esta oportunidad para informarle a todos nuestros clientes y lectores del estado de New York, que ahora tenemos un nuevo número de teléfono en el área de Nueva York:

646.867.3959

Con éste nuevo número, le facilitamos la comunicación a nuestros clientes de esa área que tienen asuntos legales de familia y herencias en Puerto Rico.

Prácticamente nos dedicamos completamente a clientes estadounidenses o residentes fuera de Puerto Rico, y nos enorgullece servirles a todos nuestros hermanos y hermanas que viven en el extranjero.

Aprovecho esta oportunidad para aclarar que nuestras oficinas están en Puerto Rico, y sólo practicamos acá. La información de contacto que proveemos es para facilitar la comunicación con nuestros clientes y brindarle consultoría legal a residentes estadounidenses y extranjeros.

No estamos licenciados para practicar ni proveer consultoría fuera de Puerto Rico.

Pronto tendremos numeros locales en Connecticut, Philadelphia, Chicago y Texas, para facilitarle a nuestros futuros clientes de esas áreas el comunicarse con nosotros en Puerto Rico.

También quisiera agradecerle a nuestro clientes de Nueva York por su contínuo patrocino. Es un verdadero placer servirles y les extendemos nuestro más cálido abrazo a todos.

Seventh Annual World Congress of Computer Law in San Juan, Puerto Rico

December 12, 2007 By: Christian M. Frank Fas Category: IP/IT/Telecomm Law No Comments →

0001.pngFortunately enough, the Seventh Annual World Congress of Computer Law was held in San Juan, Puerto Rico from December 3rd to 7th, 2007.

This joint venture between the Puerto Rico Bar Association, the Alfa-Redi Foundation, the Inter-American University of PR, and the University of Puerto Rico brought together a delightfully informative group of inter-disciplinary professionals in what became a melting pot of innovation for the truly cutting edge of law.

Huge tomes can be written on any one of the many topics covered during this week, so I’ll just provide my overall impression of my favorite conferences I attended there. Feel free to research any of the topics covered, and you’ll be sure to find thousands of references on each, but none of them will provide the actual dynamic of live physical presence and group discussions that sprung up during the Congress.

I’ll begin, where else…but at the beginning.

I was sitting in my favorite chair at home, when I received a message from the PR Bar Association Newsletter which read: “VII Annual World Congress of Computer Law”, and immediately I was hooked. It could’ve been held in Sri Lanka, and I would’ve booked a plane ticket right then and there. It then read “San Juan”, and further below “The first 30 who respond will receive a scholarship.” Faster that you can say “Spam”, I replied with my contact info. Less than a minute had gone by since I’d received it. I began my “Please, please, please, let me be chosen.” chant, and lo and behold, I was chosen!!

With my schedule almost cleared from appointments, and as a true Road Warrior that I am, I packed up my stuff and took off.

I arrived to the first conference held by Dr. Pedro Silva Ruiz on Electronic Contracts and Puerto Rico’s Electronic Signature law. This very interesting take on how our Civil Law tradition melds into the new globalized market of instant contracts through the Internet gave us an insight on how our local law is slowly adapting to a new contractual reality. Supported by an extensive list of references, Dr. Silva covered many topics in a very complete and organized manner.

For example, he discussed the lack of wording and formalities that legally binding e-mails may have. Being that such a communication may create a contractual obligation in Puerto Rico, he alerted those of us that commonly contract through e-mail that the completeness and precision of our language may come into play when contracting through the Internet. Our e-mails may one day come to be reviewed in court, so the more precise and carefully chosen our words are will be a key factor when interpreting the contracting parties.

After a short break, the second conference of the day was held by Dr. Claudia Fonseca from Televisa, where she explored the economic impact of Spam on the Private Sector. The figures and statistics that she covered and discussed were staggering. Something as innocuously looking as an unsolicited e-mail can cost enterprises millions of dollars a year, which in turn are passed onto the consumer. The seemingly harmless messages, when multiplied by the trillions of e-mails that are sent back and forth each day add up into a heavily taxed network traffic that requires more maintenance and increased traffic capacity, which in the long run, is paid by the consumer.

Afterwards, the excellenty eloquent Lcdo. Héctor Luis Acevedo, ex-mayor of San Juan and an expert on the Puerto Rico election process, expressed his reserves on an electronic voting system. Given the low margin of error attained with the PR manual process, and the high costs involved with changing the whole system over to an electronic system, Lcdo. Acevedo expressed serious doubts on whether or not to “upgrade” our election system. We were shown an excerpt of the 2006 documentary, Hacking Democracy, which very diligently put to the test the Diebold Election Systems, and showed that these miserably failed a hacking attempt, questioning the very results of all the past elections that have used these e-voting machines. Perhaps the only advantage that e-voting offers is the speed at which the final results are known, but I came to the conclusion that speed need not sacrifice the integrity of the democratic process. Please, don’t think for a second that I’m a techno-paranoid traditionalist, quite the contrary. But, the election process is probably the LAST place where a questionable result from a questionable process is needed. Besides, the only un-hackable computer is one that is not connected to anywhere, and that would defeat the purpose of an e-voting unit.

A quick lunch later, we sat down for a delightful dissertation given by Dr. Hildamar Fernandez from the Fiscalía de Venezuela on Cybercrime. Being a Criminologist myself, I was drawn to this conference even before it started. I’ve been a network security analyst for almost 15 years, and a staunch supporter of tougher cybercrime laws. Only recently has this legislation been approved in Puerto Rico, and its inclusion in our latest review of the PR Penal Code proved that we have legally arrived to the 21st Century. Dr. Fernández explained in great detail the Venezuelan categorization and penalization of Internet crimial activity, and discussed step by step the criminal sentencing process for each offense. One fact that I found rather curious is that the legal age for transgressors to be tried as adults is 14, which given the profile of the cyber-offensor, it might be a little harsh to sentence a minor to such long prison sentences at an early age. Many might detract from this view, and I am not a proponent of weak sentencing, but I must concede that minors are drawn by the allure of cybercrime. I, for one, became a security analyst by learning how to hack, and then applying that knowledge and experience for legal purposes. Had I not been drawn in by the mystique of breaking the law (there were none or few back then), this blog would most likely not be here.

The best part of this conference was the final slideshow of the different gadgets and inventions that facilitate cybercrime, phishing and ID theft. We saw card swipe readers in all colors and sizes, authentic looking fake ATMs, and even undistinguishable fake credit cards. I can safely say that I’ll stop and think long and hard before paying for gas at the station with a credit card the next time.

Afterwards,  @ the Puerto Rico Bar Association

So, the second day started with the introduction of Puerto Rico’s Electronic Attorney Registry, called UniRed, which is a joint venture of the Judicial Branch’s Court Administration Office (OAT in Spanish), and the Office for Notary Inspection (ODIN in Spanish).

During this conference, given by two representatives of each government dependency, including ODIN’s new Director Lcda. Lourdes I. Quintana Lloréns, the whole preparation process, development and implementation for such a large scale virtualization of attorney profile creation and court document and docket management was explained in full detail. There are three main goals of this program, the first is to enable attorneys to file documents electronically, the second is to handle court docket scheduling and manage documents, and the third is to automate and streamline official notifications.

From my point of view, and being a technological darwinist, this program will unchain me from the physical constraints of physical document filing, and may well reduce will enable me to practice law from wherever I am in the world. There is a great concern that many lawyers who still do not have the necessary computer skill to manage e-filing or electronic docket management. A few year ago, the PR Federal Circuit Court simply decided to start e-filing. You either learned, or practiced something else. The court set a deadline, and offered courses to teach those who didn’t know how to file electronically. I strongly believe that this is the way to go. You either learn, or practice something else. “I’ve been doing this the same way as far as I can remember.” is not an option in our practice.

The UNIRED conference later addressed the future plans of e-notification of notary documents and filing for certifications online through the new government web portal. The Office for Notary Inspection is diligently streamlining the necessary reciprocal communication between its offices and the community of Public Notaries in Puerto Rico. Notaries must file monthly reports and are subject to periodic inspections. An electronic system of document filing and notification will definitely speed these bidirectional communications, and keep a closer tab on such a delicate and important practice.

While in Law School, I was a strong proponent of e-filing and e-document management. Most of my colleagues said that this would never happen in my lifetime. It’s nice to know that it happened early enough in my law practice to see it materialize, and be able to benefit from it. So…here’s a great big “I TOLD YOU SO.” to all of them.

The next conference discussed the theory and practicality of running an e-government. An expert in Oracle Systems spoke of his experiences with multi-level e-government services deployment, and its negative impact over bureaucracy. Along with very organized and detailed slides, he covered all the intricacies associated with digitalizing public services, and as he pointed out, the most important of these tasks: making internal government processes and inter-departamental communication faster and more efficiently, while at the same time reducing the costs associated with document multiplicity and reprocessing. This, just this, was a wake up call to digitize most government agencies. Another very interesting topic he covered dealt with the suspicion by government employees that digitalization and automatization brought with them layoffs by simplifying the bureaucratic process. Quickly and very proficiently, he pointed out that instead of employing personnel to speed up multiple processes, these same government employees can be better dedicated to serving the public, while fewer people are needed to process the intake of processes. Fascinating…less people working, and more people serving the public might one day eliminate lines at government offices. One can only dream that this day will come.

After a lunch break, the Congress resumed with a lecture on Patents and Trademarks. This conference was like “Patents and Trademarks for Dummies”, and the speaker explained everything in simple, common language. It’s great that he did so, because most of the audience, although enthusiastic over new technologies, and speaking for myself, do not handle these matters commonly. As a solo practitioner, I seldom see Intellectual Property matters, or handle submissions to the US Patent Office, as do larger law firms who specialize in these practices.

On a side note, on this day I met Dr. Erick Iriarte Ahon, from Lima, Peru. As a representative from Alfa-Redi Foundation, he organized and moderated most of the conferences. A big “Thank you” to him for providing me with a wealth on information, and sharing his ample knowledge of domains and virtual identity on the web. You can visit his law firm’s webpage at http://www.iriartelaw.com.

New Blawg!!! www.MortisCausa.com

October 11, 2007 By: Christian M. Frank Fas Category: Announcements No Comments →

Well, I decided to divide up my blogging into two: BoricuaLaw for all that is Puerto Rico Law, and MortisCausa just for inheritance law.

Since Estates, Wills and Inheritance Law are my main areas of practice, so much so that I began working with them even before I even considered going to law school, I have come up with a blawg on it’s own. Besides, dont tell anyone, but I have the only blawg about inheritance laws in Puerto Rico!!! Shhhhhhhhhhh!!

“Mortis Causa”, although it sounds like an evil cult, is latin for “after death”, and is how property is transmitted after one passes away. Successions, or Estates in Puerto Rico are transmitted mortis causa.

Perhaps the practice, although fascinating, is a little uncomfortable for some. Regardless of how you may feel about dealing with your own mortality, the truth is that it is always best to be prepared, and the more information we have, the better prepared we are.

So, go on over to www.MortisCausa.com and check it out. Feel free to leave a comment, or two, and add it to your favorite RSS or XML reader.

Of course, questions are always welcome!

Who inherits in Puerto Rico in the absence of a will?

October 09, 2007 By: Christian M. Frank Fas Category: Estates 2 Comments →

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:

  1. Death Certificate of the deceased.
  2. Marriage Certificate of the widow (or widower), if any.
  3. Birth Certificate of the Heirs.
  4. 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.

New Boricualaw.com phone number in New York!

October 07, 2007 By: Christian M. Frank Fas Category: Office No Comments →

Again with a new phone number…I take this opportunity to inform our clients who live in New York that we now have a new telephone number for the NYC area:

917.512.8445

Now, we can offer our legal services to the millions of Puertorricans that live in New York, or whose families migrated from Puerto Rico, and may need assistance with legal matters here, such as claiming their parent’s Estates, dealing with Child Support reviews in ASUME, or doing business in Puerto Rico.

Given the fact that most of our clients live in the United States, we are slowly adquiring new telephone numbers in areas with a large Puertorrican population.  We will be activating new numbers soon in Hartford, Chicago, Texas and Philadelphia, so that our clients, or potential clients can communicate with us in Puerto Rico by dialing a local number.

We continue to establish ourselves all throughout the world by placing our services at the whims of a continuously changing global market.  Like our motto says: “Laptop and airplane ticket in hand, wherever we’re needed.”

Flat-fee billing for Family Law Cases

October 04, 2007 By: Christian M. Frank Fas Category: Family Law 2 Comments →

The new trend in setting fees among Family Law practitioners is Fixed Fee Billing.  Under this billing system, clients are quoted a single, flat fee rate for their complete case.  After all, if Criminal Lawyers can set a flat fee, why can’t Family Lawyers do it, too?

Many Family Lawyers shy away from setting a Flat Fee from the start, because they aren’t sure how long the case will last, or how much opposition the other party might provide, how long or difficult the evidence discovery period might be, or if the case might end at all.  Many different factors can prolong Family Law cases, caused both by the opposing party and the legal system.  Very rarely (if ever), do I meet a Family Lawyer who favors fixed fees, and if they do, they only apply them to uncontested cases, such as a Mutual Agreement divorce, or a voluntarily submitted case, such as an adoption.

Many clients are wary of hiring legal counsel because they don’t know how much the case will cost in the long run.  Sometimes, not even the lawyer answers that from the start, stating the all-too-common “I have no way of knowing that, nor will I ever.”  Perhaps there is no certain way to know how much a complex case will cost to investigate, prepare and litigate in the long run, but for most cases, experience should provide a rough estimate of how much the case might cost, and approximately how long it would take.

I strongly favor fixed fee billing, and so does the Puerto Rico Supreme Court.  Time and time again, the same words have been re-written in many decisions:  “Attorneys should refrain from billing through contingency fees, and should only do so exceptionally when the client cannot absolute pay for their case.”  I’ve research extensively on this new billing method, and according to what I have found, fixed fee billing does have certain advantages, such as:

  • No longer having to track every minute of every day will mean that the attorney is no longer a slave to the billable hour.’ For most attorneys, tracking time is a stressful, cumbersome, and tedious process.’ It is inconvenient and counterproductive to have to continuously stop working on clients’ cases to record what time was spent on each one, and then to track and review the recorded time at the end of each day or week.
  • The attorney will gain several extra hours per week that used to be spent recording time, and this newly found time can be spent working on clients’ files, spending time with family, or relaxing - all of which are better than chasing the tail of the billable hour.
  • Even more time will be saved by not having to send out as many bills per month, record and process the payments, and deal with the trust accounting issues that are involved with retainers.
  • There should be no disputes with clients over the amount of a bill and/or no questions to be answered about the amount of time that was spent on a given activity, because the amount charged for the services was negotiated and agreed upon before the representation began.
  • Handling cases in this manner gives the attorney the ability to decide up front if he/she wishes to represent someone for a reduced fee, such as military personnel, teachers, or other public servants.
  • There are other benefits to the attorney, such as the additional leverage gained when establishing fees in this manner and the ability to deposit these fees directly into the attorney’s operating account if the fee agreement is drafted properly.

Source is The South Carolina Family Law Blog.

I believe that it is time to introduce this “new” method of billing to our clients in Puerto Rico.  For the past few months, I have consulted my collleagues with adopting this billing method, but most of them have resisted to do so.  Perhaps they have not read enough on the topic, or perhaps they are afraid to over or under-bill their clients, on the other hand, I believe that a client always benefits from knowing exactly how much their case will cost, and thus provide them with a certainty of what is needed to complete their legal matter.

Agreements vs. Contracts in Puerto Rico

October 02, 2007 By: Christian M. Frank Fas Category: Corporate Law No Comments →

Many a time have I seen contracts titled “agreements”, but are they different under PR law? Both terms are used indistinctly here, and give the fact that Puerto Rico is a hub of international commerce because of our unique cultural, language and political duality, private documents between two parties are named “agreements” frequently. Obligations drafted in English are titled “Agreements”, and every day, thousands of these are used to provide goods and services throughout the Commonwealth.

Agreements are contracts under Puerto Rico law.

There is no such distinction here. An agreement, without any “consideration”, or monetary disposition or value, is granted full contract status here. Perhaps the title reads “agreement”, but for all purposes, what negotiating parties are really agreeing to, is a full blown contract.

Obligations that are born from contracts are the law between parties (31 L.P.R.A. § 2994), and since “agreements” are not recognized separately by our Civil Code, they are granted the same enforceability as they would a contract.

But, how about verbal contracts? Is a verbal agreement also a contract?

Verbal agreements are known as verbal contracts in Puerto Rico.

The only three requirements for a valid contract here are: consent of both parties, the object of the contract, and the cause, or motivation for it.

Before I get into a very dense discussion of contracts and obligations, chock full of verbose legalese, it is very important for anyone doing business in Puerto Rico that once an offer has been accepted by the accepting party, a contract is born.

Here’s an example:

  1. Company A in Poughkeepsie offers to sell 1,0o0 widgets monthly for the next 5 years to Company B in Humacao for $1 per widget.
  2. Company B calls company A over the phone, and the Sales Rep answers the call.
  3. Company B’s purchasing agent orders, over the phone, the offered 1,000 widgets at the agreed price.

Voila! A contract for 1,000 widgets for $1 apiece was born! No, a fax need not be sent detailing the purchase order, nor a letter, nor a notarized document is needed. Now, Company A MUST sell the widgets to Company B for the next 5 years. PERIOD.

Widget market value, production costs, and materials may increase, but the price offered cannot be altered, not even by a court (under almost all circumstances) and that’s that.

This example may be simple, but I cannot stress enough the importance of carefully handling possible contracts under our law. Great deference is granted to contractual obligations, and the extinction to claim the right to personal obligations (such as contracts) by prescription is 15 years since they were last requested (31 L.P.R.A. sec. 5294). This means that Company B can be buying widgets for a very long time.