Argentina: Foreign Wills In Argentina

Last Updated: 2 March 2017
Article by Mario Eduardo Castro Sammartino
Most Read Contributor in Argentina, November 2017

Foreign wills in Argentina have had a new regulation with the enactment of the Civil and Commercial Code of the Nation (Código Civil y Comercial de la Nación or CCCN), effective as of 1 August 2015. The CCCN has introduced significant changes to the Argentine internal Inheritance Law (Articles Number 2,277 through 2,531), as well as to the International Private Law from Argentine sources (Articles Number 2594 through 2671). Following, we will briefly explain the current regime of foreign wills in Argentina, as well as the intestacy situation arising out of the absent of a will.

1. International inheritance jurisdiction and law in Argentina

Jurisdiction over inheritance and probate issues will be in charge of the judge where the deceased last had his / her address or the judge where real estate is located in the country with respect only to such real estate (CCCN, Article Number 2,643). Therefore, there will be a concurrent jurisdiction when real estate exists in Argentina.

As far as the applicable law is concerned, under the CCCN, Article Number 2,644, first sentence, successions are governed by the law of the country where the decedent was domiciled at the time of his death. However, Argentine law will mandatorily apply to real estate located in Argentina (CCCN, Article 2,644, second sentence). This international imperative law from internal sources preclude the application of any foreign law (CCCN, Article Number 2,599),

2. Foreign wills in Argentina

a. Governing law

As far as their validity is concerned, pursuant to Article Number 2,645 of the CCCN, the form of a foreign will is alternatively governed by the law of the place where it has been granted, the law where the testator has had his / her domicile or habitual residence, the law of the country the testator is a national of, or Argentine law.

Legal capacity to grant and revoke wills will be governed by the law of the testator´s domicile at the time of issuing his / her last will dispositions (CCCN, Article Number 2,647).

b. Forced heirship rules

When Argentine law applies, last will and testament´ s dispositions may not deprive certain heirs of their rights over a portion of the deceased´s assets (See 3. Intestacy below).

3. Intestacy

When no will has been granted and Argentine law applies, the CCCN will govern who inherits the deceased and the extent of the heirs´ rights.

Argentina has in place a forced heirship system (CCCN, Articles Number 2,444 through 2,461), mandatorily vesting certain individuals with the right to succeed the decedent and have certain portions of the decedent´s estate reserved for them. Forced heirs may not be deprived of their reserved portions (porción legítima) either by wills or gifts.

Under Argentine law, forced heirs are: descendants, ascendants, and spouses (CCCN, Articles Number 2,444). Descendants have the right to two-thirds of the estate of the deceased, ascendants to one-half of the estate of the deceased and spouses to one-half of the estate of the deceased (CCCN, Articles Number 2,445, first paragraph). These reserved portions are calculated over the liquid value of the estate at the time of the decedent's death and the gifts provided for each of the forced heirs at the time the gift was made (CCCN, Articles Number 2,445, second paragraph). If there exists surviving descendants and spouse, the reserved portion is two-thirds of the estate of the deceased (CCCN, Articles Number 2,446, second paragraph). Beyond the reserved portions, individuals may freely decide over their estates, either by wills or gifts. However, the CCCN allows the testator to reduce the reserved portion to improve that of disabled heirs, whether they are descendants or ascendants (CCCN, Article Number 2,448).

Notwithstanding all of the above, in limited and serious cases listed by the CCCN (Article 2,281), forced heirs may be deemed unworthy of inheriting and therefore excluded from the succession (e.g. when any forced heir is judged to be the author, accomplice or participant in an intentional crime offense against the deceased, his / her honor, sexual integrity, liberty or property).

Different legal rules also determine how heirs concur over the deceased´s assets (CCCN, Articles Number 2,424 through 2,443):

  1. Descendants: They exclude the ascendants and concur with the spouse. Concurrence among descendants and the spouse differ according to the marital or own property of the estate. Being the case of marital property1, the descendants and the spouse share the estate in halves. The decedent's own property is distributed in equal portions among all of the descendants and the spouse;

    Among themselves, descendants equally inherit the deceased´s estate (CCCN, Article Number 2,426).  Grandchildren inherit by representing (derecho de representación) the predeceased offspring (CCCN, Article Number 2,428);
  2. Ascendants: They are excluded by the descendants and concur with the spouse over the non-marital property in halves (CCCN, Article 2,434). Among themselves, ascendants equally inherit the deceased´s estate (CCCN, Article Number 2,431). Closer generations exclude further ascendants;
  3. Spouse: The spouse may concur with descendants or ascendants;
  4. Collateral relatives: not existing descendants, ascendants or spouse, collateral relatives,  until the fourth degree of relationship, are equally entitled to the estate.

Any general agreement entered into by and between future heirs during the deceased's life is null and void. However, the CCCN has allowed agreements over future inheritances as long as the covenants only fall over the equity of companies or other business ventures with the aim of maintaining the management unity or preventing or solving conflicts, and the dispositions do not deprive forced heirs of their reserved portions, nor do they affect the spouse or third parties´ rights (CCCN, Article Number 1,010).

4. Inheritance and Probate procedures

When Argentine jurisdiction and law applies, a court-based procedure must be conducted to declare who the heirs are. The administration of the estate must be carried out by an administrator, either by the testator or the heirs acting by majority. Non- residents individuals may be appointed as executors of the estate.

5. Inheritance taxes in Argentina

There are no federal inheritance or gift taxes in Argentina. However, some provinces, such as Buenos Aires and Entre Ríos, have enacted taxes levied over the transfer of property because of death or on a non-consideration basis. The tax rate range from 4% to 21.92%, depending on the taxable base and the relationship with the decedent or donor.

Footnote

1. Marital property basically comprehends all assets acquired on a consideration after the marriage. Marital property will not exist in case the spouses have made a convention opting for a separate property regime.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Mario Eduardo Castro Sammartino
 
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