LAST WILL & TESTAMENT FOR EXPATS LIVING IN NICARAGUA: WHY IT IS IMPORTANT TO HAVE ONE.
Nicaragua has become a new expat destination to retire and to invest that is why real estate investment has recently increased; because of that I would like to share information about this topic, in view of the importance of this subject.
According to Nicaraguan Civil Code, a real estate owner has the right to decide who to leave property in case of death, through a Writ signed in front of a Notary Public Notary named “Testamento”. This is a legal document prepared with solemnity, therefore it is necessary to do it in front of three legal witnesses. In the Testamento a property owner appoints the heir or heirs.
Notaries Public in Nicaragua are lawyers at the same time, licensed by the Supreme Court of Justice of Nicaragua for that reason Will & Testament have the status of Public Documents and it is not necessary to go through Probate in court. Heirs just need to follow a simple paperwork to get the property into their name, including the payment of transfer tax, as any real estate purchase.
I must say that the Wills from abroad could be accepted in Nicaragua, however these Wills have to be legalized (Apostilled or Authenticated) depending the country of origin; and they have to be translated as well.
The United State of America is part of The Hague Convention for Public Documents; therefore, documents have to be Apostilled to be accepted in Nicaragua.
Other countries like Canada are not part of The Hague Convention for Public Documents, in that case those documents have to be Authenticated in the country of origin and Authenticated in a Nicaraguan Consulate in USA and in the Foreign Affairs Ministry in Managua as well.
A Will from abroad, should be prepared according to the customs and laws of the country of origin. For example, in the USA a Will is usually less formal than in Nicaragua and if an American is living in Nicaragua or has real estate properties it will be more convenient to prepare a Will & Testament in Nicaragua which will include the information, registration numbers and description of the property according to the Nicaraguan Notary System, which will be accepted by the Nicaraguan authorities at the time the property is transferred to the heirs in the future.
A Will & Testament will avoid many problems to the families. For example, some years ago an American told me that, his father had died in Nicaragua and he knew his father had a real estate property in Nicaragua but he did not know what kind of property was that and where it was located.
It is important to state, sometimes expats have families in Nicaragua and abroad, even children from a different marriage. They could be Foreign and Nicaraguan children.
When somebody dies without a Will – ab intestato – the heirs have to start a process in Court. The procedure to transfer the property or proprieties to the heirs is named Declaration of Heirs.
The Civil Code of Nicaragua states that in the event of death without a Will or Testament the first option to be declared heirs should be the children.
Family Code, states that children have the same rights, even if the parents are married or not, or if they are Foreigners or Nicaraguans. Therefore, if the Judge has to declare the heirs, according to the law the Judge will declare to the children with equal rights, and equal percentage on the property or properties.
It is imperative to know that under the Nicaraguan Law Joint Tenancy with Right of Survivorship or Transfer on Death Deed does not exist. Therefore, if a real estate is in the name of a couple in the event of death the survivor does not receive automatically the right of ownership of the property.
On the other hand, it is also important to be aware that any Power of Attorney in Nicaragua – POA – will not be accepted when somebody dies. At this time the POA will “die,” too. It does not have any value or effect any more, even if it was issued in Nicaragua.
The only documents valid to act in the name of the deceased are: Will & Testament or a Declaration of Heir, these work for real estate property decisions, vehicles, corporation shares, weapons, personal belongings, and funeral decisions.
Because of the above reasons, for foreigners that live in Nicaragua or have Real Estates properties in Nicaragua, my advice is to prepare a Will & Testament in Nicaragua. The Nicaraguan Will & Testament must fulfill the Nicaraguan requirements and in my opinion has to be notified to families abroad and in Nicaragua. If you would like more information about this subject or other important legal matters CLICK HERE.
Paul Tiffer R.
Attorney at law