Succession is a process that begins with the death of a person, for the distribution of his or her property, liabilities and assets among his or her worthy heirs.
In the event that the deceased has made a will during his lifetime, we will speak of a testate succession.
Will: A more or less solemn act by which a person disposes of his or her estate during his or her lifetime to take effect after death.
Difference between heir and legatee
An heir shall be whoever represents the person of the testator, succeeding him in all his transmissible rights and obligations, including the burdens imposed on them by the same text of the will.
A legatee is a person who has only been assigned a certain thing in a singular title, without having any burden other than that imposed by the will.
Types of wills
That carried out in compliance with all legal requirements. May be:
- Open: When the testator makes his dispositions known to the notary and his witnesses, and the notary or one of the witnesses must read aloud the complete text.
- Closed: When the notary and witnesses do not know its contents. It may only be granted by those who can read and write and must be granted by those who cannot understand or be understood orally, declaring before 5 witnesses and the notary that their will is in that closed document. Subsequently, all those present must sign the cover sheet.
- Granted abroad: A solemn will granted abroad will be valid if it has been executed in accordance with foreign laws or Colombian laws if the following requirements are met:
° That the testator and his witnesses are Colombians or are domiciled in Colombia.
° Authorized by a Colombian diplomatic minister or of a friendly nation, a consul or a secretary of legation, with his or her seal.
° To be approved by the Colombian Secretary of Foreign Affairs.
Less solemn or privileged will
For this type of will, any person of legal age of sound mind who understands the testator and who is not disqualified from being a witness by virtue of a conviction or a sentence of imprisonment of more than one year may be a witness. If given in writing, they must also be able to read and write.
- Verbal: In case of such imminent danger to the life of the testator that there is no way or time to grant a solemn will, subsequently materialized in his death within 30 days. It requires at least three witnesses and, once expressed, it must be expressed in writing within 30 days after the death before the judge of the circuit in which it was granted.
- Military: In time of war, military personnel, volunteers, hostages and prisoners, employees and companions of the military corps or any of the above, may grant a will before three witnesses and:
º Captain or superior, army quartermaster, commissary or war auditor
º Chaplain, physician or surgeon, if ill or wounded
º The commanding officer, regardless of his rank, if he is on a detachment
The will is valid as long as you die within 90 days of its execution. An oral will will be valid if you were in imminent danger of death and you actually die because of that danger.
- Maritime: On board a Colombian warship or merchant vessel on the high seas, before three witnesses and the commander or his second in command.
Notice of its execution shall be given in the ship’s logbook and upon arrival in Colombia or in a foreign port with a Colombian consular or diplomatic agent, the commander shall deliver a copy of the will to the respective authority.
The will shall be valid if the testator dies without disembarking or, having disembarked, dies within 90 days thereafter.
The verbal maritime will is only valid in the case of a warship and in compliance with the same requirements as the military verbal will.
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- It must be granted by a single person, personally and completely voluntarily.
- The testator must be at least pubertal (14 years of age or older) and capable of understanding, sober and conscious at the time (and only at the time) of making the testament.
- To be given in writing
- The assignees must be certain persons, determined by name or by clear indications, unless it is destined to charitable objects, to the testator’s soul or to the poor (in the latter cases it will be understood that it is left to a charitable establishment). If there is confusion as to which of two or more persons would be entitled to the allowance, none of them will be entitled to it.
- Dispositions may be conditional, but not conditional on the assignee leaving a portion of his assets to him in his own will, and may also be subject to a time limit.
- The amount or share of the allocation must be determined or clearly determinable.
- It must respect the rigorous legitimate rights, which are quotas of the deceased’s assets, corresponding in their totality to 50% of his estate, which the law assigns to the so-called legitimatists, who are the descendants and ascendants.
- To be signed by the testator, notary and three (or five in case there is no notary) witnesses who must comply with:
° Be over 18 years of age
° Not being deprived of reason
° Not be disqualified to be a witness by an enforceable judgment, nor sentenced to imprisonment for more than one year.
° If foreign, be domiciled in the country.
° Understand the language of the testator
° Not being within the third degree of consanguinity or second degree of affinity of the testator, the notary or another of the witnesses.
° Not being the testator’s spouse, dependent, domestic partner, heir or legatee
° Not being a dependent or domestic servant of the testator’s spouse, of the notary, of another witness, of one of the testator’s relatives in the third degree of consanguinity or second degree of affinity, of one of his heirs or legatees, or of anyone who could benefit from the will.
° Not having been a regular confessor or in the last illness of the testator
° At least two of the witnesses must be domiciled in the place where the will is made.
° At least one of them, if there are three or two if there are five witnesses, must be able to read and write.
If any of the witnesses unknowingly fails to comply with one of the requirements, not being relevant in his behavior, the will shall not be invalidated. However, if more than one does so, it will be invalidated.
- Newer clauses will take precedence over older ones
- The request for documents through the will will not be taken into account.
- Any gift or promise that is not made perfect (complete in its requirements) and irrevocable but for the death of the donor is considered testamentary.
- Errors in the name or capacity of the assignees shall not vitiate the disposition if there is no doubt as to the person
- An assignment that appears to be based primarily on a mistake of fact shall be deemed not to have been written.
- The assignment made to the relatives will be fulfilled according to the legal succession orders.
- The acquisition of a specific asset may be arranged for a specific purpose.
- It is worth the bequest of a future thing, if it comes into existence.
Do you need legal advice about intestate succession?
At Servicio Legal we have extensive experience in probate in Colombia, we know how to handle these cases, even the ones that are thought to be complex. Ask for legal advice about wills.