Wolfenson Abogados provides legal advice and accompaniment in the sensitive case of the death of a family member or loved one.
The succession by cause of death consists of the way of acquiring ownership of the assets that belonged to a deceased person, either with respect to all the assets that belonged to them, a share of said assets, certain things, or indeterminate things.
Taking into account the above, it must be understood that the persons who are called to succeed the deceased through succession by cause of death can be of two classes: heirs and legatees. Having a variety of cases that may arise, we represent our clients in all types of matters involving succession or inheritance law, from the drafting of a will, effective possession and to the end of the hereditary community.
Here is a legal guide to give you general guidance on inheritance law:
How are inheritances classified in Chile?
In general, our legislation classify inheritances into tested and intestate (intestate). Each of them has different legal characteristics.
What are the testate inheritances?
The testate inheritances are those on which the deceased (deceased) has drafted a will. In such sequences it is necessary to carry out the effective possession before a judge, which will divide the assets as established in the last will of the deceased. Notwithstanding that, said will must respect the forced assignments that law gives to some of the heirs; which means that the distribution of assets made in the will must be in accordance with the limits established by law or failing that, it will run the risk of being judicially reformed. For this you should always have the advisory of a expert lawyer signature Wolfenson Lawyers.
What are intestate or intestate inheritances?
The intestate inheritances are those on which it has not fallen will some. Therefore, the assets of the deceased will be divided between the heirs according to the general rules established in the Civil Code. The effective possession of the inheritance in this case, will be carried out in the offices of the Civil registration by any of the heirs. It is necessary to carry out these procedures with the legal advice of a qualified lawyer that prevents future risks and allows the correct distribution of assets, Wolfenson Lawyers provides its customers with a rigorous legal advice in matters of inheritance.
How is the inheritance divided in Chile?
The answer to this legal question It depends on many factors, especially who they are heirs. That is, whether or not there is a spouse, children, grandchildren, parents, grandparents, brothers, uncles, etc. The rule is the following: inheritance descends vertically, then ascends, and finally extends horizontally. For example, if there are children and one of their parents dies, the estate assetsThey will be divided among them, and nothing will fit the parents of the child deceased. On the other hand, if there are no children, will divide the inheritance between the parents of the deceased (and the spouse, if there are any) and if there are no parents, it will continue with the grandparents, and if there are no grandparents, the cousins and uncles of the deceased will continue. In the absence of all of them, will inherit the treasury.
Do all heirs receive the same percentage of estate assets?
The answer is no, not all heirs receive equal share of the estate assets. For example, in the event of the death of a person who had a spouse and several children, each of the children will have half of what corresponds to the surviving spouse. However, if there is only one child and spouse surviving, it will be divided equally between them.Wolfenson Abogados provides the advice required for the Correct distribution of assets in inheritance.
Heirs or legatees?
Heirs succeed throughout the estate of the deceased, that is, in the set of transferable rights and obligations or in a share of it. The heir does not receive specific assets, but all or part of the inheritance share, going on to occupy the legal place of the deceased both with respect to the assets and the deceased's debts. For their part, the legatees happen only with respect to certain goods through a will and are not responsible for the Debts of the deceased (they do not represent the deceased).
How is the power to succeed to the estate of the deceased or deceased acquired?
He right of inheritance is acquired by the succession by cause of death, that is, by the mere fact of death of the person. It should be noted that inheritance does not always mean a benefit to the heir, due to the fact that it can come loaded more by debts than by goods, it is for this reason that the heir will be able to accept or repudiate the inheritance after the death of the deceased. Procedures that are carried out at the time of making the effective possession for the wolfenson lawyers.
What are the requirements to succeed?
The requirements are the person should be able to happen, must be worthy of happening, and it must be a certain and determined person.
What is the order in which the inheritance is distributed? orders?accessories?
Exist five succession orders, so called because they establish the legal order according to which determine the heirs. These are the following:
1st order: Spouse or civil partner and sons. If one of the children is deceased, then the inheritance passes to the grandchildren that correspond on the part of that son.
2nd order: Yeah there are no descendants, inheritance you can go to your parents and, in the event of their death, the assets may even pass to the grandparents.
3rd order: If the previous ones are missing, they can inherit the siblings that they have on the part of mother and father. If any of them died, you inherit the children of, that is, the nephews.
4th order: In case all of the above are missing, the inheritance passes to the closest collateralsximos, that is, blood relatives that they are alive as uncles, cousins, etc.
5th order: Cwhen all of the above are not missing, then the inheritance passes to the Treasury.
What is effective possession y that types exist in Chile?
Effective possession is the action by which the heirs of a deceased person request authorization to take disposition of the patrimony of this person. To perform the action no effective possession, on the part of the heirs, it is necessary to take into consideration whether or not the deceased or deceased person left a will, since both cases the procedures are different, being in the first judicial(with advice and representation of lawyer obliigatory) and in the second, administrative.
He procedure to obtain effective possessionective of one hergum depend directly on if the decedent or deceased has or has not left a will. Depending on the case, we can distinguish between two types of effective possession:
- Effective possession tested. What is proven effective possession?
In case the deceased person has granted a will in Chile. effective possessionInheritance VAT bears the name testamentary effective possession. In this case, the requirement is filing and legal advice in a procedure demand civil before courts in Chile. The heirs must, with the sponsored by a Wolfenson attorney submit the application to a civil court.
Said judicial action, accompanied by the will, must contain the individualization of the heirs and attach the death certificate of the deceased and the birth certificates of the heirs.
Once the court issues the resolution of effective possession, the heirs must attach said sentence together with the inventory of the deceased previously presented before the Court, to then follow a process before theInternal Revenue Service (SII) to determine and pay the inheritance tax.
In terms of time, the effective possession procedure lasts approximately, which varies from a few months to a year, depending both on the agility of the civil court, as well as the organizations that participate (Real Estate Registrar, Civil Registry, Internal Revenue Service) and finally the attorney lawyer or office in charge of the operation.
-Intestate effective possession. What is intestate beneficial possession?
In cases where the person who has died has assets and has not left a will (inheritance without testament), the possession of the inheritance by his heirs has by name in Chile the de intestate beneficial possession.
The intestate effective possession carried out before the Civil Registry and Identification Service allows to determine with a high degree of certainty who are the heirs of a deceased person, so that they can dispose jointly and as commoners of the assets of the deceased.
Although effective possession is intestate, it does not necessarily requirespecialist legal advice from an inheritance lawyerfor your request. Notwithstanding this, it is highly recommended to have the expert legal advice, to comply with all the established requirements, legally investigate the real assets of the deceased, maximize customer interests from the tax or tax point of view, procure the correct registration of the assets before the Real Estate Registrar and other entities, prepare and facilitate the distribution of inheritance assets, among many others.
When a person dies and does not leave a will, it is best to start with the effective possession procedures ASAP. With this, inconveniences such as the loss of some goods, their deterioration, the loss of their value or their misuse, among others, are avoided.
The Intestate effective possession can be carried out in the civil registry offices but also electronically or online, on the civil registry website www.registrocivil.cl using the electronic signature that grants the unique key. As for who can make the request, any heir who has said quality and therefore an interest in the inheritance.
Having entered the civil registry portal with the unique password, or in the offices of the institution, a form must be filled in where the following information must be placed:
Individualization of heirs.
All the data of the deceased person.
Inventory of all assets owned by the person at the time of death
Specify if there is inventory profit. This means, if you will accept the inheritance having as a limit the value of the debts or liabilities of the deceased. The identification data of the deceased person, he or the applicant and the inventory of assets.
Subsequently, and after the verification process is completed, the resolution of effective possession granted by the Regional Director of the Civil Registry Service.
Finally, the following must be done:
Declare and pay inheritance taxes at the Internal Revenue Service, if applicablethe payment of the same and does not operate an exemption.
Register the real estate in the name of the heirs and hereditary community that corresponds in the competent Real Estate Registrar.
Register the vehicles in the name of the heirs in the Registry of Motor Vehicles.
Register all assets that are subject to registration.
Collect the corresponding rights and/or deposits that exist, as well as take charge of the debts of the deceased.
What is the will in Chile?
sets theArticle 999 of the Civil Code Chilean who,The testament is a more or less solemn act, in which a person disposes of all or part of his property so that it has full effect after his days, preserving the power to revoke the provisions contained in it, while he lives.
How are they classified and what types of wills are there in Chile?
The testamentIt is classified into solemn and less solemn or privileged wills.
solemn testament It is the one in which all the solemnities that the Law ordinarily requires have been fulfilled. Which can be open or closed.
What is the open will?
He open will, is the one in which the testator makes his dispositions known the official, if any, and the witnesses. For this type of wills, you will need three witnesses attest to the act.
What is the closed will?
He closed will is the one in which the content is not disclosed Rather, the testator presents the official and the witnesses with a closed deed, expressing that the will is contained in it. For this type of wills, you will need five witnesses that attest to the act.
The privileged testament can be verbal, military or maritime. These last two can be open, closed or verbal.
Who can not test in Chile?
The prepubescent, the deprived of reason, the insane, the one who cannot clearly express his will cannot testate.
Who are unable to be witnesses?
The following are unable to be witnesses:
those under 18 years of age,
those who are under interdiction due to insanity,
those deprived of reason,
those sentenced to penalties established in article 267 no. 4 and in general those disqualified by final judgment to be witnesses,
the consents of the notary authorizing the will,
foreigners not domiciled in Chile,
people who do not understand the language of the testator, without prejudice to what is stated in article 1,024.
What address must the witnesses have?
They must be domiciled in the place where the will is made.
In order to adequately carry out all the procedures related to effective possession, both testate and intestate, Wolfenson Lawyers has an outstanding team of lawyers specialized in inheritance and law succession, effective possessions and open or closed wills, among other aspects of right of inheritance, in order to provide a legal advice and legal representation of excellence in Chile to each of our clients both in Chile and abroad.
Wolfenson Abogados provides specialist legal advice on inheritance law and wills.
Links of interest aboutInheritance Law in Chile:
1.- Civil Registry - Effective Possession
2.- BCN - Intestate Effective Possession
3.- Internal Revenue Service - Effective Possession
Wolfenson Lawyers. Chilean Law Firm.
If you need more information and legal advice regarding succession or inheritance law, we invite you to get in touch with our lawyers in Santiago. We are located at Av. El Golf 40, Floor 12, in the Las Condes commune, Santiago de Chile.