Colombia: International Estate Planning Guide - Individual Tax and Private Client Committee

Last Updated: 15 March 2017
Article by Mónica Reyes Rodríguez and Juan C. Riveira Gómez
Most Read Contributor in Colombia, November 2017


A. Will Formalities and Enforceability of Foreign Wills

In Colombia, a will is a solemn act which must comply with the formal requirements established by civil law in order to be valid and binding. A will, like any other legal act, must fulfill the essential requirements for validity, that is, that the testator has legal capacity to make the will, that his or her consent is not impaired by vices such as error, duress or fraud, and that the act has a lawful purpose and cause. Depending on the type of will involved, the law has established additional specific formalities for validity.

Under Colombian legislation, wills are classified as solemn or privileged. Solemn wills may be open or sealed and privileged wills are classified into oral, military and maritime wills. A solemn will must always be recorded in writing and executed before competent witnesses. At least two of the witnesses must be domiciled at the place where the will is granted, and must be able to read and write.

In an open will, also known as a nuncupative or public will, the testator makes his or her dispositions public before three witnesses and a notary. The witnesses must copy the words of the testator verbatim and, at the end of the proceeding, read and sign the will. In a sealed will, on the other hand, the witnesses and notary are not required to have knowledge of the dispositions contained in it. However, the sealed deed must be presented before a notary and five witnesses, declaring viva voce that the deed contains the will.

Privileged wills, on their part, may omit some of the formalities by reason of specific circumstances expressly determined by law.1 Nevertheless, a privileged will must meet three requirements: i) the viva voce statement of the testator regarding his or her desire to make a will, must be unequivocally declared; ii) the persons whose presence is necessary in the making of the will must be before the testator, and iii) the granting must be continuous, in that it may be only interrupted exceptionally for brief intervals, when required by reason of an accident. The validity of a privileged will is provisional and, therefore, once the exceptional situation is overcome, the requirements of a solemn will must be complied with.2

As to the content of a will, the law provides that it must indicate the full name, place of birth, nationality, domicile and age of the testator, as well as the circumstance of being of sound mind and the names of the testator's spouse and children, together with the information of each of the witnesses and the notary, indicating the place, day, month and year of execution of the will. Errors in content do not nullify the will, provided there is no uncertainty regarding the identity of the testator, notary or witnesses.

The allocations to be made must be determined or determinable, underlining the fact that the will of the testator is limited by the forced allocations established by Colombian law. These allocations are mandatory for the testator, and therefore they will be observed when they have not been made, even if they contradict what is expressly provided in the will. Forced allocations include: i) the support due by law to certain persons; ii) the marital share, that is, the portion of the assets of the deceased which the law assigns to a surviving spouse who lacks the necessary means for a decent subsistence; iii) the legitime succesors portion that is the portion assigned to certain persons known as legatees;3 and iv) the fourth of the estate for accretions to the inheritance of the legitimate heirs.

In accordance with the foregoing, only as of the third order of inheritance, that is, if no descendants or ascendants survive the testator, may he or she dispose freely of the entire estate. Otherwise, the testator may make allocations at discretion only on a percentage equaling 25% of his or her assets.

On the other hand, the validity of wills granted abroad is subject to them been made in compliance with the laws of the State where they were granted, leaving evidence thereof, proof of their authenticity and the legal translation, if necessary.

If the will is granted abroad in compliance with Colombian regulations, the following requirements must be met for its validity: i) that the testator is a Colombian national, or a foreigner domiciled in Colombia, ii) that the will is authorized before a Colombian consul, iii) that the witnesses are Colombians or foreigners domiciled in the city where the will is granted, iv) that the rules of a solemn will are observed.

B. Will Substitutes (Revocable Trusts or Entities)

It is important to point out, first of all, that Colombian law does not contemplate the common law Trust institution, but there is an institution with similar characteristics, known as a Civil Law Trust, or "fiduciae". The establishment of a civil law trust implies the imposition of an encumbrance on all or part of the estate of the Trustor. When this ownership is retained by the Trustor or is transferred to another person, it is done on condition that it will be passed on to a third party upon the occurrence of a specific event. As a will substitute, the use of a Civil Trust is useful to transfer the assets of a future de cujus, through the designation of the spouse and other heirs as beneficiaries of the Trust, once a condition is met, which in this case is the death of the Trustor.

Therefore, a Civil Trust involves three parties: the Trustor, the Trustee and the Beneficiary. The Trustor is the person who delivers the assets by way of a Trust to the Trustee; the Trustee is the person to whom the property is entrusted until the condition is fulfilled, with the charge of restoring it to the Beneficiary; and the Beneficiary is the person in whose favor the restitution is to be made once the condition is fulfilled.

The Trustee holds the full right of ownership and usufruct of the assets for the duration of the Trust, except as otherwise stipulated, bearing in mind that the Trust ownership may be established on the bare title, reserving the proceeds for the Beneficiaries. When the person dies, the ownership of his or her assets passes to the Beneficiaries in the proportion established in the document constituting the Trust Ownership, without the need for a probate hearing.

From the tax point of view, this mechanism may be onerous, given that if the Trust is gratuitous, at the time of occurrence of the condition it generates a taxable capital gain for the Beneficiary, and therefore each case must be studied in detail, in order to determine the appropriateness of using this scheme. On the other hand, even if they do not constitute will substitutes as such, in pursuance of minimizing the tax burden at the time of the succession and as an instrument for administration of the Estate of the deceased during his or her lifetime and after his or her death, certain corporate schemes may be used both in the country or abroad, through corporate forms contemplated in Colombian law, such as Limited partnerships and Simplified Stock Companies.

The establishment of a Limited partnership allows the testator to have control of the company as an administrating or managing partner, and to structure the assignment of the assets with new capitalizations, through which the heirs will gradually increase their rights or shareholdings in the capital of the company.

Likewise, Simplified Stock Companies (Sociedades por Acciones Simplificadas, SAS) have a flexible and dynamic regulatory framework in which the autonomy of the shareholders prevails. This corporate form enables the establishment of types of shares that assign the control of the company to one of the shareholders, through multiple votes or fractioning of vote stipulations for the election of boards of directors or other collegiate bodies of the company. In addition, the SAS offer the possibility of establishing minimum or maximum amounts of corporate capital that may be controlled by a specific shareholder, and special restrictions for the negotiation of the shares issued by the company.

The implementation of foreign companies also allows a testator to manage his wealth in the jurisdiction he considers most favorable for tax and corporate purposes. The transfer of funds abroad to invest in assets is permitted in Colombia, provided the funds allocated for such purposes are channeled through the exchange market and reported to the Central Bank.

C. Powers of Attorney, Directives, and Similar Disability Documents.

Under Colombian civil law, all persons have legal capacity to acquire rights and assume obligations, except for those who the Law deems incapable, namely those who, despite their status as legally capable persons, cannot govern themselves or manage their affairs.4 These persons must act through a representative.

Incapacities have been established in order to protect the interests of certain persons who, for one reason or another, do not have full discernment or lack the necessary experience to be able to express their will, acquire rights and bind themselves in a sufficiently clear manner, and therefore are disqualified to enter legal transactions..

Incapacities may be general or specific. General incapacities refer to all types of legal transactions, while specific incapacities only refer to certain acts and are expressly stipulated by the law. In accordance with the Civil Code, said general incapacities may in turn be absolute or relative. Thus, individuals with absolute mental disability,5 children who have not reached puberty, and deaf-mute individuals who cannot make themselves understood are considered to be absolutely incapable and their acts are subject to absolute nullity. On the other hand, adult minors and squanderers who are under judicial interdiction are considered to be relatively incapable, given that their acts may be admissible under certain circumstances and in certain cases determined by law. This incapacity results in relative nullity.

In favor of protecting the interests of incapable persons, the law has created guardianships, which include tutorships and curatorships. A tutorship is exercised over children who have not reached puberty and is always of a general nature, while a curatorship may be general or special. The latter refers to a specific act or a particular transaction. On the other hand, Law 1306 of 2009, provided that when the value of the productive assets of an individual with absolute mental disability or a minor, exceeds 500 times the legal monthly minimum wage, or is less, but the Judge deems it necessary, the administration of the assets will be turned over to a Trustee.

Likewise, Law 1306 of 2009 created the measure of disability for persons suffering from behavioral deficiencies, prodigality or business immaturity, and who, as a consequence thereof, may place their wealth at serious risk. These individuals may be disqualified to enter certain legal transactions, at the request of their spouse, relatives up to the third degree of consanguinity and even by the individual himself. This may also be imposed as an accessory measure at the request of creditors or ex officio by the judge, in estate liquidation proceedings and in cases of payment through assignment of the assets of individuals.

To read this article in full, please click here.


1. An oral will only occurs in cases of imminent danger to the life of the testator. Likewise, in order to make a military will the testator must be in a war expedition or campaign against the enemy or at a garrison in a territory under siege. A maritime will may only be made on board a Colombian warship at sea.

2. An oral will has no value if the testator dies after thirty days following its execution, or if having died before, the will has not been set out in writing within thirty days following the death. In the case of a military will, if the testator dies before ninety days following the date on which the circumstances of war that enable him to grant a military will have ceased, his or her will is valid, but if the testator survives this period, the will becomes invalid. A maritime will is not valid unless the testator has died before disembarking or during a period of ninety days following disembarkation.

3. The following are legatees:

1) Legitimate, adopted or illegitimate children, personally or represented by their legitimate or illegitimate descendants.

2) Ascendants.

3) Adoptive parents.

4) The blood parents of a child adopted by simple adoption.

4. According to article 1502 of the Civil Code, capacity may refer to enjoyment or action. The former consists of the general legal competence of every individual or legal entity to hold rights and obligations. The capacity to act consists of the ability recognized by law for a person to bind himself or herself, without the intervention or authorization of another person.

5. Persons suffering from a severe or profound learning or behavioral condition or pathology, or mental impairment, are considered to suffer from absolute mental disability.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Mónica Reyes Rodríguez
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions