Puerto Rico Law Blog

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…

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.

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.