Estate Planning Attorney Lawyer Argentina Elder Law

Estate Planning Attorney Lawyer Argentina Elder Law

Estate Planning Attorney Lawyer Argentina Elder Law

Estate Planning Attorney Lawyer Argentina Elder Law

 

Argentine General Questions

What is estate planning and why is it so important in Argentina?
What is a Living Will?
Are there other documents that should be considered in addition to a Will?
Wills
What is a Will?
Is a Will necessary if the value of the Estate is small?
Is it really necessary for me to have a Will?
How does a Will become “self-proving”?
Are you new to Argentina?
What could happen if I don’t revise my out-of-state Will?
Can I change my Will after it has been created?
What happens when a person dies without a Will?
How long is a Will valid?
May I transfer my property any way I wish by a Will??
Who should prepare a Will?

Is Joint Tenancy with Right of Survivorship a suitable alternative to a Will?
Trusts
Can I substitute a trust for a will?
What is a Revocable Living Trust Agreement?
What are the advantages and disadvantages of a Revocable Trust over a Traditional Will?
Does a trust provide protection from creditor claims?
Does the trust guard against the elective share law?
Is trust income subject to federal income taxes?
Can trusts reduce estate taxes?
What exactly is the role of a Trustee?
Why should I choose a Trustee?

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Probate
What is Probate?
Do I benefit by avoiding probate?
Is it true that probate is a long, drawn-out, and costly process?
Are all assets subject to probate?
How does a revocable trust avoid probate?
Do I have to go to court to probate a Will?

General Questions
What is estate planning and why is it so important in Argentina?

When a person dies, that person’s property must pass to someone else. A mentally competent adult has the legal right to choose how his/her assets are distributed after his/her passing. Estate planning involves various strategies designed to minimize estate taxes and settlement costs, as well as to determine what will happen to your property and investments in the event of your death. A good estate plan would also include clear directions regarding your wishes in the area of health care matters, in the event that you are unable to give such directions yourself.

Estate planning is very important, even if you believe you don’t have a lot of assets or if you believe your children can appropriately divide your assets on their own. Without proper legal arrangements for the management of your assets after your death, Argentina’s intestacy laws will take over upon your death, which often results in higher estate costs, fees and taxes, and sometimes results in the unintended persons receiving your assets.

What is a Living Will?

A Living Will is a document where you indicate your desire not to be maintained on life support procedures if you are suffering from an incurable and terminal condition and you would be unable to survive without such procedures. This should not be confused with a Last Will & Testament, which is a document that provides distribution of your estate upon your death.

Probate Law Argentina

Probate Law Argentina

Are there other documents that should be considered in addition to a Will?

A person may want to consider executing one or more of the following documents In addition to a Will:

A Living Will– Argentine Statutes allow an individual by declaration to stipulate when, and to what parameters, life-prolonging procedures should be used.
Durable Power of Attorney– This document may aid in handling finances, property, and legal matters of an individual that has become incapacitated, and forgoes the necessity to open a court proceeding to appoint a guardian to handle the person’s obligations.

Designation of a Health Care Surrogate– Argentina law allows a person to select an individual to make health care decisions for them in the event that they are unable to do so for themselves.

Designation of Preneed Guardian– Argentina law permits an individual to name a person that can be appointed as guardian over themselves and/or their children should the need arise.

 

Wills
What is a Will?

A will is a written direction controlling the disposition of property at death. The laws of each Argentine province set the formal requirements for a legal will. In Argentina:

The testator should be of legal age, that is, 18 years old or older.
All the formalities required by Argentine law should be fulfilled.
In addition, the testator should be of sound mind when signing the will.
The will should be in writing, witnessed, notarized, and apostilled if there are assets and property abroad.
The will should be proved in and allowed by the probate court to be effective.
A will becomes only final after the death of the testator.

Is a Will necessary if the value of the estate is small?

Anyone wishing to implement control in the final disposition of their property and assets in Argentina after their death should have a will regardless of the value of their estate.

Is it really necessary for me to have a Will in Argentina?

Yes, if you want to ensure that the people you want to receive your property actually receive it. If you want to ensure that an appropriate person is appointed to administer your estate, then the answer is “yes” also.

How does a Will become “self-proving”?

A Will can be made self-proving at the time of its execution. This can save valuable time, as well as the expense of locating a witness and obtaining their oath after death. To establish a Will as self-proving the named “Testator/Testatrix” (i.e. The person executing their Will) must acknowledge the Will before an officer authorized to administer oaths; the witnesses must make affidavits before the officer; and the officer must then verify the acknowledgment and affidavits by attaching a certificate to the will as prescribed by Argentina law.

 

Are you new to Argentina?

If you have recently relocated to Argentina, your Will may need to be revised in accordance with Argentine laws. You should contact an Argentine attorney to review your Will to ensure that it can be properly probated in Argentine, that witnesses are available to establish the validity of your Will in Argentina, and that your Personal Representative is qualified under Argentine law to carry out your final wishes.

What could happen if I don’t revise my out-of-province Will?

If you die with a foreign will (any will from a country other than Argentina), the costs of administering your estate may be higher because of 1) you will have to have probate in two different jurisdictions (if you own property in another country), and 2) your will, while being administered in Argentina, will be administered according to that different province’s laws, thereby creating the need for hiring not only an Argentina attorney but also an attorney in the other jurisdiction.

Can I change my Will after it has been created?

Yes. You can create a new will whenever you want. The creation of the new Will revokes your prior will. You can amend a will by a ‘codicil’, which is simply an addition executed with the same formalities of the will. A will’s terms cannot be changed by physically amending the will after the will is executed. Writing on the will after its execution invalidates part or all of the will.

What happens when a person dies without a Will?

If you die without a will, your property will be distributed to your heirs according to a formula decided by Argentine law. Your property does not go to the Argentine government unless there are absolutely no heirs. In other words, if you fall to make a will, inheritance law (which is called intestacy) determines who will get your property.

The intestacy inheritance laws in Argentina contain rigid formulas and makes no exceptions for those in unusual need. Argentina and USA are not the exceptions to the general rule. The cost of probating may be greater than if you had planned your estate with a will, and the administration of your estate may be subject to greater court supervision.

How long is a Will valid?

The will is valid until it is changed or revoked. Your will may be changed as often as you desire as long as you are mentally competent and not under undue influence, duress, or fraud. Changes in circumstances after the execution of the will, such as tax law amendments, deaths, marriage, divorce, the birth of children, or even a substantial change in the nature or amount of your estate, may raise questions as to whether your will is still appropriate. All changes require careful analysis and reconsideration of the provisions of your will. It may make it advisable to change the will to conform to the new situation.

May I transfer my property any way I wish by a Will?

While any sort of property may be transferred by Will, there are some particular property interests which cannot be willed because the right of the owner terminates automatically upon his/her death. Some examples of these types of property rights or interests are:

Homestead Property (i.e.- the residence and adjoining lands owned by a person who is survived by a spouse or minor child -OR- up to one-half acre within limits of an incorporated city or town.

A life estate: property owned only for the life of the owner
Any property owned jointly with another person or persons with right of survivorship (tenancy by the entireties, which would be joint ownership between a husband and wife, would be one of these)

Elective Share Statute

A person may not disinherit his or her spouse without a properly executed marital agreement. The law gives a surviving spouse a choice to take either his or her share under the will or a portion of the decedent’s property determined under Argentina’s “elective share” statute.

This statute uses a formula to compute the size of the surviving spouse’s elective share, which includes amounts stemming from the decedent’s jointly held property, trust property, life insurance, and other non-probate assets. Because this formula is very complicated, it is usually necessary to refer this matter to an attorney with experience in this area of law.

Also, if your will was made before the marriage and the will does not either provide for the spouse or show your intention not to provide for his/her, then your spouse would receive the same share of your estate as if you had died without a will (at least one-half of your estate) unless provision for the spouse was made or waived in a marital agreement.

Our Policy

Please be advised that our law firm does not take estate planning cases which involve attempts to intentionally disinherit an existing spouse during marriage or any person’s child and/or children due to fundamental ethical differences with assisting someone in engaging in such estate planning actions.

Who should prepare a Will?

The drafting of a will involves making decisions that require professional judgment which can be obtained only by training, experience, and study. Only the practicing lawyer can advise the course best suited for each individual situation.

In addition, an attorney will be able to coordinate the use of other skilled professionals, such as an investment advisor, insurance specialist, and an accountant to complete a proper estate plan. There is no such thing as a ‘simple will’. Even smaller estates can have problems and complexities only foreseeable by an experienced attorney.

Do I need to submit my Will to the Court prior to my death?

No. Your Will can be held confidential until your passing. After your death, it will be filed with the Probate Clerk.

Is probate necessary in every case?

Before your Will is effective to settle issues pertaining to your Estate, it must be confirmed through the probate court. If self-proving, a Will may be admitted to probate without further documentation.

However, if it is not self-proving, it may be necessary to provide the oath of a witness in order to proceed through probate. The oath must be given before a Circuit Court Judge, Clerk of Court, or a Commissioner specially appointed by the Court for this purpose. (In the event of certain situations, the Court may consent to prove the Will by other means.)

Do probate expenses increase in every case?

A will frequently reduces probate expenses. If there is real or personal property to be transferred at your death, the probate court will have jurisdiction to ensure that it is transferred properly, either according to your will, or in accordance with Argentina’s intestacy law.

Even if you have no will, your heirs must go to court to administer your estate, obtain an order determining your legal heirs, or obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will appoints the beneficiaries and delineates procedures to simplify the administration process.

Is it possible to reduce estate taxes?

A well-drawn will, which is probated, can involve some minor estate taxes that may arise when someone dies. Estate taxes are often the largest cash expense an estate can have. Proper planning must be made for tax advantages and is indispensable in taking these benefits in the Argentine tax codes.

May I substitute a life insurance policy for a will?

Life insurance is just one kind of property that may be owned by a person. A will is necessary to dispose of assets and/or property that a person owns at death. The will has no effect on the proceeds if a life insurance policy is payable to an individual.

If the policy is payable to the estate of the insured, the disposition of the proceeds may be directed by the will. Life insurance can be useful in providing cash at death for payment of expenses, but like most strategies for insurance, the careful person will consult a lawyer, a life insurance agent, and a financial advisor. Mistakes in ownership and beneficiary designations in these policies can cause great increases in estate taxes owed.

Is Joint Tenancy with Right of Survivorship a suitable alternative to a Will?

Joint tenancies with right of survivorship can be established when two or more people hold title to bank accounts and other assets collectively in their names. The purpose of this is to ensure that real estate ownership is passed to the remaining named owner, upon the death of the other owner.

A “Tenancy by the Entireties” is the same concept but pertains only to situations where the parties are legally married. In this instance, the probate of accounts and other assets can be avoided in the event that one of the persons becomes deceased.

While in some cases this can be efficient, quite often it can cause problems such as increases in estate taxes, or double probate in the event of simultaneous death. It may also create issues with regard to unresolved claims against the decedent.

Trusts in Argentina
What does a Spendthrift Trust consist of?

A Spendthrift Trust is used to protect the beneficiary’s share of the estate by not distributing all of it until the beneficiary attains a mature age.

Can I substitute a trust for a will?

A trust can handle only the property that has been put into it. Any property of a person that is not placed in the trust either during life or at death in most instances escapes the control of the trust. A trust may be used in addition to a will.

The will controls all property in a decedent’s name at the time of death if the will is drafted properly. Trusts can be helpful to speed administration and save taxes if they are drafted properly and funded during life with the property intended to be transferred by the trust.

Often, however, improperly drafted or incorrectly funded or administered trusts can add to the cost of settling estates. Furthermore, it is the probate of the will that can clear creditors’ claims, which is not possible with just a trust administration.

What is a Revocable Living Trust Agreement?

A Revocable Living Trust Agreement is a legal document created by an individual to manage his/her assets throughout his/her lifetime and to dispense the remaining assets to their beneficiaries upon his/her death.

This document allows the creator of that trust, or “Grantor”, to assign themselves, another person, bank, or trust company as the “Trustee” to manage the trust assets. During a person’s lifetime, the Trustee may invest and manage the trust property.

It also allows the Trustee to continue managing trust assets, pay the Grantors bills, and make investment decisions in the event that the Grantor is unable to do so. An advantage to this process is that the need for a court-appointed guardian is eliminated.

Trustee’s Responsibilities

When the Grantor dies, the Trustee, or his/her appointed Successor Trustee, is responsible for paying any claims or taxes of the decedent, and disbursing the remaining assets to beneficiaries in the manner set forth by the trust agreement.

As with most trust agreements, the Grantor has the right to withdraw money or assets in any amount from the trust at any time. They may also modify or terminate (i.e.“revoke”) the trust at any time provided they are mentally competent to do so.

To get the maximum benefit from this type of trust, most assets, such as bank accounts, real estate, and most investments must be legally transferred to the trust. Any remaining assets that are not transferred may be subject to the probate process.

Conversely, some assets such as annuities, if transferred into a trust can cause income tax issues. The help of an attorney, tax advisor, and investment advisor is recommended to establish if certain assets are suitable for trust ownership.

What are the advantages and disadvantages of a Revocable Trust over a Traditional Will? Which one is better?

Some advantages of a Revocable Trust include:

You can avoid probate proceedings and fees.
The Trust is not filed with any court upon your death, which means that your financial affairs and beneficiaries remain confidential.
Your assets are immediately available to pay expenses and make distributions.
You may avoid guardianship proceedings if you become incapacitated.

Estate Planning Elder Law

Some disadvantages of a Revocable Trust may include:

Legal costs of drafting a Revocable Trust are greater than those of drafting a traditional Will

The decision of whether to create a Revocable Trust or a Traditional Will is one that must be made on an individual basis after consultation with an attorney.

Are your assets properly titled to a trust?

You may find some information on your account statement, stock certificate, title or deed and may mention the Trust or Trustee. You can also choose to fund the trust by naming it as a beneficiary of a life insurance policy. An attorney and financial advisor can help you make the appropriate choices for your estate.

Also, if your trust includes real estate, it is very important to contact an attorney to properly prepare the deed. An attorney will consider the impact of existing mortgages, title issues, and homestead restrictions when preparing the deed.

How do creditors receive payment?

Trust laws in Argentina do not specify an exact process for discovering and fulfilling creditor claims upon a person’s death. In fact, creditors have two (2) years after a person’s death to file a claim against the estate. For this reason, a Trustee may be hesitant to distribute the trust assets until satisfied that all claims have been paid. Some people choose to create a probate estate as well, to take advantage of the three-month limitation it places on creditor claims, and the claim objecting process it provides.

Does a trust provide protection from creditor claims?

In Argentina, trust assets may be subject to creditors’ claims. While living, assets in a revocable trust are basically as if you were the actual owner. Therefore, creditors are able to make a claim against them essentially as if they were titled in your own name. If the assets remain in the trust after the death of the Grantor, the beneficiary’s interests may be safe from creditors due to a “spendthrift provision” written into the trust.

Argentina law allows special protection for many types of assets, including those owned by husband and wife. An attorney will advise you on which assets you can protect from creditor claims and can affect the funding of a trust. An attorney will give these types of assets special consideration in deciding how to fund a trust.

Estate Planning Elder Law

Does the trust guard against the elective share law?

Argentina law mandates that a surviving spouse has a right to 30 percent – or an “elective share” – of the estate, including assets from outside of probate. Assets in revocable trusts are still subject to the elective share rule, but there are exceptions, and it is possible to waive elective shares. Ask your attorney whether the elective share rule applies to your situation.

Is trust income subject to federal income taxes?

Federal income taxes usually do not apply on revocable trusts during a grantor’s lifetime. However, revocable trusts become separate entities for income tax purposes if they are irrevocable. When that happens, the trustee needs to file a fiduciary income tax return.

The calculation of taxable income, credits, and deductions is the same as for individual filers. Deductions may apply to trusts for the distribution to beneficiaries. Taxes on income from a trust to beneficiaries are on their individual income tax returns. But, if the beneficiaries do not receive the income, the applicable taxes are for the trust only.

Can trusts reduce estate taxes?

Revocable trusts can save on estate taxes, but your authority over the trust causes it to become part of your taxable estate at death. Trusts in writing may minimize estate taxes. However, similar planning strategies may also be available to people who choose to use a Will.

What exactly is the role of a Trustee?

Careful investing is an important duty, but it’s not the only one that Trustees perform. Your trust agreement may stipulate other duties. Among the general duties of trustees are managing trust property, investing trust assets, distributing trust income to beneficiaries, setting tax strategies, careful record-keeping and answering beneficiaries’ questions.

Why should I choose a Trustee?

Almost anyone can be a Trustee, including non-relatives and persons outside of Argentina. Choosing a Trustee can have tax and income implications, so making a careful selection is important. When choosing a friend or relative, take time to consider whether that person is the prudent choice.

Will that person cause friction among the beneficiaries? Will his/her appointment prove burdensome to the person? Remember, the trust agreement should also allow this person to hire qualified experts for legal and financial advice.

Probate
What is Probate?

Probate is the court-supervised administration of a decedent’s estate. It is a legal process to transfer assets from the decedent’s name to his/her beneficiaries. A personal representative handles the estate administration. The probate process ensures that creditors, taxes, and expenses receive payment before the distribution of the estate to the beneficiaries. The personal representative is accountable to the court as well as the estate beneficiaries for his/her actions during the administration.

Estate Planning Elder Law

Do I benefit by avoiding probate?

Avoiding probate may lower the cost of administering your estate and time delays associated with the probate process. Many of the same costs and time delays associated with probate will also be necessary with a revocable trust.

A probate administration and the administration of a revocable trust after death are similar. The trustee must collect and value the trust assets, determine creditors and beneficiaries, pay taxes and expenses, and ultimately distribute the trust estate.

A trustee has a right to a fee for administration of the trust, as is the personal representative of an estate. The savings may be marginal due to the extent professional services of accountants, attorneys, and estate liquidators, who are necessary to complete the process.

Avoiding Probate

On the other hand, avoiding probate in multiple states is a definite benefit. Because of the nature of real estate, probate is usually compulsory in every state in which you own real estate.

You may usually avoid it by transferring ownership of the real estate to your trust during your lifetime.

Is it true that probate is a long, drawn-out, and costly process?

Not exactly. The probate process usually much less expensive than litigation and the typical probate case may finish in 8 to 12 months.

Are all assets subject to probate?

Only assets owned by a decedent in his/her individual name require probate. Assets owned jointly as “tenants by the entirety” or “with rights of survivorship” with a spouse will pass to the surviving owner without probate.

Other examples are assets with designated beneficiaries, such as life insurance, retirement accounts, and annuities. Others are bank accounts and “pay on death” investments or “in trust for” a named beneficiary. Assets held in a trust will also avoid probate.

How does a revocable trust avoid probate?

After death, by means of the probate process, the deceased person’s assets transfer to their beneficiaries. By making this transfer before death, a person avoids the need for probate. This gives the Trustee instantaneous authority to manage the assets and the need for court appointment is unnecessary. “Funding” or the transfer of assets to the trust is crucial to avoiding probate. Sometimes, trusts need a probate administration to distribute the assets.

A revocable trust may not always avoid probate. In this case, a person may need a straightforward “pour over” will. This will transfer any assets -subject to probate- to the trust after death.

Do I have to go to court to probate a Will?

There is no need to personally appear before the court in order to probate a will. However, the submission of documents is compulsory to procure a probate order and administer estates. In many Argentine provinces, the probate attorney nor the personal representative of the estate rarely appear before the court.

Argentina Elder Law Attorney

Estate Planning Lawyer

 

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