1.  You will need each of the heir’s original Birth Certificates.

2. You will need the decedent’s original Death Certificate.

3. You will need a Negative Will Certification.

5. If the decedent died while married, you will need his/her original Marriage Certificate.

6. You will need a notarized Statement Under Oath that the information on the Petition is the truth.

7. You will need $65.00 in “Sellos de Rentas Internas”.

8. You will need to file the Petition and a project of the Resolution, or judgment, in court.

Please remember that all these documents MUST BE IN ORIGINAL, OR CERTIFIED COPIES. The court will NOT accept photocopies, unless there are extreme circumstances.

DISCLAIMER: Please don’t ask me for a model or boilerplate form for a Declaration of Heirs.  I would be glad to send you one, but the ethical risks of sending a non-client legal documents are far too great.  Call Pro Se, instead.

The truth is that it is the responsibility of the heirs to divide the estate.

The executor’s rights, responsibilities and obligations are usually outlined in the testament. Anything not covered by the testament is outlined in the Puerto Rico Civil Code. While it may be true that an heir can named as an executor, or executrix, other heirs have the right to divide the estate whenever they wish to do so.

It’s up to the heirs to request that the estate be divided or not. Heirs can also choose to remain as co-owners of the undivided estate, or to divide assets according to the testament, but it is NOT the executor’s responsibility to divide the estate.

What is a disinheritance?

A disinheritance is the act by which a testator deprives a forceful heir from his or her legitimate portion of the estate, for a specific reason outlined in the Puerto Rico Civil Code. It is a resource provided by law to exclude a forceful heir from the estate when the heir has committed specific acts agains the testator.

Only forceful heirs can be disinherited, and they can only be disinherited by drafting a testament.

1. What are the requirements to disinherit an heirThat there is a forceful heir, such as a descendant, or ascendant. Only forceful heirs can be disinherited. The testator cannot disinherit someone who does not inherit to begin with.
2. The heir must have committed a specific action against the testator, and that action must be one of the outlined reasons or causes for disinheritance. Only then can he or she be deprived of their legitimate portion of the estate. (Article 773, 31 L.P.R.A. § 2451)
3. The action, and its cause for disinheritance by law, must be clearly expressed in the testament.
4. The name and identity of the heir must be clearly stated in the testament. (Article 775, 31 L.P.R.A. § 2453).

Exception: If the disinherit forceful heir contest the disinheritance after the testator dies, the remaining heirs have the burden of proof that the cause and action were committed by the disinherited heir.

The Puerto Rico Supreme Court has stated that the cause for disinheritance must be specified in the testament. Contrary to the ordinary rule of liberal testamentary interpretation, that which permits the court to interpret liberally the intention of the testator, and must prevail as his or her last will, in the case of a disinheritance the specificity of the actual exclusion must be clearly stated. A testator can only disinherit through one of the reasons stated by law, and these reasons must be clearly and unequivocally specified, as well as whom is addressed by these. A testator cannot reference another document, even if the document is a public scripture or of public domain.

What are the requirements for a valid disinheritance?

That the cause is specified in the PR Civil Code. If the reason is not in the Code, it will not work.

That the act or reason is true, in other words, that it really happened.

3. That the testator does not draft a will after the act or reason occurred, but did not include the disinheritance. The act must happen first, and then the will must be drafted. Any will drafted after the act or reason, but that does not include the disinheritance, will annul any subsequent disinheritance.

4. That the will containing the disinheritance has not been revoked by a subsequent will, and once drafted, complies with all the legal requirements for a valid will. If the will is insufficient to grant inheritance, it will be insufficient to disinherit, too.

5. Finally, that the testator and the disinherited will have not reconciled after the act occurred. If both reconcile, even if the testator proceeds to draft a will disinheriting the heir, the disinheritance is not valid. (Artículo 781, 31 L.P.R.A. § 2459)

Which are the reasons to disinherit?

All of the reasons for indignity, which are:

1. Abandon, compel to prostitution or falter against the honor of one’s offspring.
2. Sentenced for attempted murder of the testator, his spouse, his children, or his ascendants. This requires a final judgment by court.
3. Accuse in a defamatory manner the testator of committing a felony which carries imprisonment.
4. Fail to inform the authorities of the violent death of the testator for more than one month.
5. Suppress, hide or change a testament.
6. Found guilty by trial for adultery with the testator’s spouse.
7. Threaten, through fraud, or violence:

• a. compel to draft a will
• compel to change a will
• impede to draft a subsequent will
• impede to revoke a prior will

Causes for disinheritance of descendants:

1. Decline to provide sustenance for testator, without a legitimate reason.
2. Offend the testator by words or actions.
3. Engage in prostitution as a profession.
4. Accuse the testator of committing a felony, except when the felony is committed against the accuser.

Causes to disinherit parents or ascendants:

1. Being deprived of patria potestas.
2. Decline to provide sustenance, without a legitimate reason.
3. Accuse the testator of a felony.
4. Fail to post bail, having the resources to do so.
5. Being negligent in providing care.
6. Attempting to murder the opposite parent.

Causes to disinherit a spouse:

1. All the causes to grant a divorce.
2. All the casuses to deprive a parent from patria potestas, such as:

• Cause, or risk, physical, mental or emotional damage to a child, or permit another person to do so

• Fail to accompany a minor as stated by law, supervise the minor’s education and development, or provide adequately for sustenance, clothing, shelter, health care, in accordance to a parent’s economic capacity, or those provided by the State, or any other physical or private entity. Health care is comprised of the medical treatment necessary to treat any physical, mental or emotional condition, or to prevent a condition from occurring.

• If, while having the economic capacity to do so, fail to provide care and custody of the minor.

• Failing to provide a reasonable amount of child support, according to economic capacity.

• Failing to visit or communicate with the minor.

3. Decline to provide sustenance to the testator, or his/her children.
4. Attempt to murder the testator.

What are the effects of the disinheritance?

1. It has the effect of depriving the forceful heir of his legitimate portion of the estate.
2. The disinheritance prevents the disinherited heirs off spring from inheriting.
3. Any forceful heir that has received a donation from the testator, and is disinherited afterwards is considered a third-party to the estate, or a stranger, and therefore the donation is attributed to the free disposition third.
4. If an heir is disinherited, and the reason cannot be proven, or is invalid, the institution of other heirs in the testament is not invalidated. The other heirs must now redistribute the estate’s assets to include the once disinherited heir.

Finally, as you can see, the disinheritance is a complex estate matter. It is both uncommon, and has several formal requirements to be effective. The institution of a forceful heir is protected in our jurisdiction, which is why it is so difficult to disinherit a forceful heir in Puerto Rico. Regardless, a testator can recur to several reasons specified by law to this inherent, and has the option to do so if the heir has offended him or her in such a great matter that the heir must be excluded from the estate.

Banking policy in Puerto Rico establishes that all the decedent’s bank accounts are to be frozen as soon as the bank is notified of the passing.  This means that regardless of the account being single, or co-joined, all deposited money is automatically frozen until the bank receives a copy of the Puerto Rico Estate Tax Release granted by the Department of Hacienda.

This creates a huge problem for the surviving spouse, because all bank accounts in Puerto Rico where the decedent is a signor are frozen until further notice.  This is further aggravated by the fact that the Puerto Rico Tax Estate Tax Release usually takes several months to be granted.  Oftentimes, the surviving spouse is left without any money to cover for funeral arrangements, or medical expenses incurred by the decedent.

There are a few ways to mitigate the damage that this limitation may impose on the surviving spouse.

Here are five tips to help you plan ahead:

1.  Have enough cash around to cover living expenses for at least three (3) months.

While having cash lying around the house may be a nuisance at best, and a security risk at worst, given the propensity of bank accounts in Puerto Rico being frozen immediately after one spouse’s passing, it’s always a good idea to have enough cash on hand to cover for the first few months after passing.  This will serve as a sure-fire “buffer” guarantee to be able to gather information regarding the estate division ahead, and serves as a safety net for the grieving surviving spouse.  The higher the monthly cost of living, the more cash one has to store at home, or at a trusted location.   A small home vault, which can be found at very reasonable prices, can be fixed to a concrete wall, and its combination set and shared with a trusted party, is usually the best bet when storing cash at home. It is always advisable to conceal these vaults, and entrust its location with a confidant with specific written instructions and its combination.  Bank safety deposit boxes are not a safe location, because as with bank accounts, banks in Puerto Rico can freeze them, and prevent the surviving spouse from opening them until the PR Estate Tax Release is granted.

2.  Have separate bank accounts with enough funds to cover living expenses for one (1) year.

Any conscientious investment portfolio must always include a portion of cash assets to cover for unforeseen expenses, while leaving long term investments accrue.  It is always wise to have enough funds to cover anything from 8 to 11 months of living expenses.  In the case of a newly deceased spouse, it is essential that the same amount be kept in two separate accounts, since co-joined accounts will be frozen.  This way, the surviving spouse will be able to cover for any living expenses while the estate division is carried out, and the PR Estate Tax Form is filed, and subsequently, its release has been granted, thus enabling the spouse and heirs to withdraw from the accounts.

3.  Set aside funds to cover legal fees.

Some estate divisions are more complex than others.  If your proposed estate division is complex, it is a good idea to also include a portion of the saved funds to cover for the legal fees, or at least a retainer, that will be required by the attorney handling the estate division.  This retainer can also be negotiated and agreed upon before any untimely passing, and many attorneys can accommodate pre-paid terms on a future estate division.  Consulting legal counsel before a spouse passes away paves the road for a smooth estate division and asset transition.

4.  Have a Life Insurance Policy naming the surviving spouse as beneficiary.

Life insurance policies are not subject to most estate division laws in Puerto Rico.  They are unaffected by forced heirship, and do not require a PR Estate Tax Release.  They can be disbursed at the time of passing without further documentation or legal proceedings, other than those required by the insurance company.  Always check with the insurer, and review the terms of the policy in order to determine the specific requirements, which are oftentimes much less stringent than any other legal proceeding pertaining estate divisions in Puerto Rico.

5.  Keep a file with copies of all the important documents regarding properties.

The single most time consuming task of any estate division, contrary to the public’s general belief that it is quibbling heirs, is searching and gathering all the estate properties.  While estate divisions can be done in portions, it is much easier and cheaper to divide the complete estate in large portions, or all at once.  Since finding properties in Puerto Rico is a labor intensive, costly and time consuming task, having a file with all the properties substantially lowers the footwork required to gather an estate inventory.

While these tips are not a guarantee that the estate division will go smoothly, they will help substantially during the transitioning period right after the decedent’s passing.  Further estate planning is always advisable, but a little foresight will go a long way, and prevent unforeseen economic quagmires during the beginning of the estate division process.

The decision to initiate an estate claim in Puerto Rico is directly dependent on whether or not there IS something to claim. It makes very little sense economically to initiate legal proceedings without first establishing what is to be claimed, how much it is worth, and how much it’ll cost to get it.

From a sentimental standpoint, many heirs wish to begin an estate claim regardless of the fair market value of the house where they grew up, or their parent’s last home. Other times, the decision to proceed legally, and the costs and legal fees associated may far outweigh the final value of the investment.

In any case, it’s always a good idea to start by investigating what assets were left behind, and how much they’re worth.

Here are a few pointers on where to begin:

Real Estate

Finding real estate properties in Puerto Rico is a daunting task. Outdated tax records, few if any online access to public records, and disorganized non-computerized filing systems make for a tedious and costly search of real estate properties.

There are ways to work around this.

Tip #1:

The first is the Puerto Rico Property Registry, or “Registro de la Propiedad”. The inclusion of real estate properties within the registry is voluntary in Puerto Rico. Registrants acquire certain legal rights or benefits if they do register their properties, but it is not compulsory, so this system is plagued with outdated records, mistakes in entries, and absolutely no way of gathering information aside from physically visiting the regional offices and searching.

There is something good to all this: apartments.

Apartments, and apartment buildings MUST be registered in the Puerto Rico Property Registry, so if the deceased family member owned an apartment, you will surely find it here.

Here’s a quick tip:  Hire the services of a Title Investigator to search the Index and find if the decedent left any real estate properties. These professionals are much more adept at searching for properties, and title studies are not expensive.  Most range about the $50 to $100 range, depending on the complexity of the study.

You will receive a list of all the properties registered under that person’s name, just as long as they are contained within the registry.

Click here for the Puerto Rico Property Registry’s addresses.

Tip #2:

The CRIM. The Center for the Collection of Municipal Taxes, or CRIM, for it’s name in Spanish (pronounced “cream“) is the government agency in charge of organizing real estate property information for property tax purposes in Puerto Rico.

If anyone needs to know who owns what, where, and how much it costs, it’s this agency. Every real estate property built, sold, segregated or existing in Puerto Rico receives it’s own lot number, called a “Catastro”. It’s a numerical denominator, much like a real estate property’s Social Security number that is used to identify it, and gather it’s taxable value.

Here’s a another quick tip:

You can search all the properties under a person’s Social Security number, and it makes for a quick cross search of what the decedent owned at the time of death.

While heirs are liable for paying property taxes before selling any real estate in Puerto Rico, there are exceptions to reduce the overall debt associated with these properties, so you needn’t worry that just by asking the government will initiate collection on past due property taxes. Now, if the decedent owned property taxes, the CRIM will require that these be paid before any new transaction is made.

You can write a letter requesting a Certification of Debt, and a listing of all the properties under the decedent’s name. You’ll need this for the PR Estate Tax form, so you might as well apply for it anyway.

Click here for a map of each municipality’s CRIM address.

Unfortunately, there isn’t much public record information online, as government agencies in Puerto Rico have yet to establish a serious online presence. As you may know from my previous posts, most of waht is available online is a downloadable form to print and mail in with a Money Order, and wait for a reply through regular mail.

There aren’t any dedicated heir or estate asset locating services in Puerto Rico, at least none that I am aware of. Personally, I have been hired to search for properties, and to provide advice on the reasonability of pursuing estate properties in Puerto Rico. Like all legal matters, it’s sometimes worth it, sometimes not. It depends on what your priorities are at the time to decide to claim an inheritance.

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.

This Registry is mandatory for any will drafted by a Public Notary in Puerto Rico, and in order to verify that the deceased did not draft a will, this Certification is necessary to petition for a Declaration of Heirs.

The Certificacion can be solicited by:

Oficina de Inspección de Notarías
Registro de Poderes y Testamentos
PO Box 190860
San Juan, Puerto Rico 00919-0860

Once you obtain the Certification, the process to petition the Declaration of Heirs can begin.

You will need Adobe Acrobat Reader to download the application, click here to get it:

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…

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.

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.