05 Apr Frequent Questions Argentina
Frequent Questions Argentina
Many times, clients come to us with a lot of questions about their estate or trust situation in Argentina. Below are some of the most common questions along with general answers about what to expect if you were to visit an Argentine Estate Law Firm. We hope it helps you start to make sense of your situation. Frequent Questions Argentina
Frequent Questions Argentina
Is probate necessary?
Argentine probate law does require an estate to be opened with the probate court. As a practical matter, however, most, if not all, estates should go through probate to protect against liability and prevent potentially costly problems in the future.
How long will probate take?
Probate in Argentina will take at least six months to a year, or possibly longer depending upon the size of the estate, or if there is no prior succession litigation in an Argentine Court.
What legal duties does an executor or administrator have?
Executors and administrators have many legal duties under Argentina probate law. Generally, an administrator or executor must ensure that Argentine law is complied with in managing the estate and distributing estate property and funds. Also, an executor or administrator owes a fiduciary duty (which is the highest duty under the law) to the heirs and beneficiaries of the estate. This means the executor or administrator must take care to make sure that all of his or her actions are in the very best interest of the estate. In fact, an executor or administrator must be careful not to get involved in a situation where there is the appearance that the executor or administrator may be doing something for their own gain that is to the detriment of the estate. If an executor or administrator transgress their fiduciary duty, then they may be held personally liable. Frequent Questions Argentina
Am I entitled to anything from the estate?
The answer to this question depends on a number of different factors.
First, is there a will? If so, and if the will is valid, then the beneficiaries named in the will are likely the only ones who will inherit the estate.
If there is no will, then the heirs (as determined by Argentinian probate law) will inherit the estate.
Once you have determined whether you are entitled to anything from the estate, what you receive will depend on the size of the estate as compared with the number of debts of the estate. However, a good probate lawyer in Argentina will be able to reduce the debts of an estate to increase the amount available to the heirs and/or beneficiaries.
What happens if someone violates the terms of the will?
If the will is valid, then Argentine probate law requires that it be followed, except when following it would violate another provision of the law. If the will is not being followed, then an interested party, typically an heir or beneficiary, may petition the probate court and bring the issue in front of the probate judge.
In some circumstances, someone will be taking estate property for their own benefit and depriving the beneficiaries of the will of their inheritance. For example, in this case, it is important to act very quickly to preserve the estate because some property may be irreplaceable. Additionally, if the wrongdoer spends the estate’s funds, it may be very difficult to recover the funds. Frequent Questions Argentina
If you are in this situation, we recommend that you speak with an Argentinian probate law firm right away.
When is a will invalid?
There are a number of reasons why a will could be invalid in Argentina. First, if the person who wrote the will wrote another will later, the second will likely revoke the first will, rendering the will invalid.
Second, if the will is not signed properly, then it will be invalid under Argentine probate law. Argentinian probate law requires that a will be signed by the person making the will (testator) in the presence of two witnesses, who must also sign the will. It is best that neither of the witnesses is a beneficiary of the will, but that alone will not invalidate the will. It does mean, however, that the beneficiary signing the will may not receive property under the will (unless certain other circumstances apply).
Third, a will may be invalid if it is signed at a time when the person making the will is not competent to make a will, or if the person is under the undue influence of another person. These situations are unique and can be challenging to prove. Every situation is different and the particular circumstances surrounding the will be signing play a major role, we recommend that you speak with an Argentinian probate law firm if you are in this situation.
What if someone has abused a power of attorney?
This can be an extremely serious situation. There are two things that may be done.
First, someone who has abused a power of attorney should not be in control of an estate.
Fortunately, Argentina probate law provides a way to object to the named executor’s appointment if it can be demonstrated that the person abused a power of attorney. You should be aware that the deadline for this objection can be very short.
What if someone is taking or misusing estate property?
Argentina’s probate law provides methods to block someone from misusing or taking estate property. However, you will need to act swiftly to stop them. Frequent Questions Argentina
The executor or administrator of the estate will need to file a petition with the court. If the property of the estate is very valuable, then you can request an emergency order from the Superior Court. This will maintain the status quo until the court can sort out the situation. Depending on the circumstances of the case, it may also be prudent to alert local Argentine law enforcement.
These situations generally are very complex, and it is best to consult an Argentinian probate law firm right away.
What creditors should receive payment?
Under Argentina’s probate law, all valid creditors of an estate should receive payment. That means an executor or administrator should sell the property of an estate. For example, a home, business, or vehicle to pay one or more creditors of the estate. Argentina’s probate law has a specific order in which creditors receive payment.
A capable Argentine probate law firm should be able to reduce creditor claims. Thus, this will increase the amount for the family. Or it will prevent selling the property.
Is it possible to avoid Medicaid claims?
Medicaid claims can be confusing and scary. Usually, Medicaid will send a letter to the family. It will state the amount of the claim, and it will request information.
Medicaid has very strict requirements that it must follow in order to recover funds from an estate. If you have received a claim from Medicaid, you should speak with an Argentine probate law firm. Thus, you may have a chance to avoid the claim.
Who are the heirs in blended families?
In Argentina Law, the heirs are the natural and adopted relatives of the deceased. As a result, a stepchild will not be considered a legal heir of the deceased. Unless he or she was formally adopted by the deceased.
What if life insurance refuses to pay a claim?
Dependent upon the reason that life insurance has refused the claim, you may have options available to you. A life insurance company will refuse to pay a claim due to the lack of payment. Under Argentina law, a life insurance company must provide a 30 day grace period within which to pay the premium. During that grace period, the policy is entirely effective. Frequent Questions Argentina
Often, the insurance company will send a notice to the insured. Either to notify the cancellation of the policy due to the lack of payment of the premium. If this notice letter is not correct, then the insurance company may inadvertently extend the grace period beyond the 30 days as per Argentine law. If that happens, then the insurance company must pay the claim.
What happens to a business owned by the deceased?
It is dependent upon how the business is set up in Argentina.
If the business is a sole proprietorship (never incorporated), then the business cannot exist apart from its owner. The assets of the business will all be part of the deceased’s estate. The business will typically stop doing business when the deceased passes away.
If the business is a valid corporation, then it will continue in existence even though an owner died.
Ultimately, the business will be transferred to a family member or employee or sold. These types of estates are usually very complex. You should speak with an Argentine probate law firm for help.
What if there is a trust?
A trust is a vehicle used to avoid probate. Or to withhold property from a person until meeting a certain condition or reaching a certain age.
If the trust was created during the deceased’s life, then it is a living trust. A living trust usually avoids probate or to take advantage of favorable tax laws. The property will be distributed according to the instructions in the trust.
Frequently, contingent trusts mean that the trust only comes into existence upon meeting a certain condition. These trusts make sure that a minor child does not receive property until reaching a certain age.
These are the two most basic uses for a trust. If your loved one’s estate involves a trust, we recommend that you speak with an Argentinian probate law firm.