Probate of a foreign will in Costa Rica
Is your foreign will valid in Costa Rica ?
It is increasingly common to find a situation where a citizen of one country has a will drafted in their home country but they have also acquired real estate and other assets in Costa Rica. What happens if you die in the foreign country leaving assets in Costa Rica ?
According to Article 905 of the Costa Rican Code of Civil Procedure if a Costa Rican or foreign citizen that is domiciled outside of Costa Rica leaves assets located in Costa Rica there is a process to recognize a foreign proceeding. If the probate case was filed in the foreign domicile then all the findings and judgments of the foreign court will be recognized in Costa Rica. To assert the validity of those foreign judgments the applicant will have to publish notice in the judicial bulletin for thirty days and then start a foreign judgment recognition action known as an Exequatur.
What is an Exequatur Proceeding?
An Exequatur is a judgment recognition proceeding. In Costa Rica the request is filed before the First Chamber of the Supreme Court of Costa Rica. If the Supreme Court approves the judgment, it will issue a ruling to one of the lower civil courts to carry out the orders of the foreign court. It is advisable in the foreign proceeding that the Court clearly identifies and describes the Costa Rican assets and names an executor for the Costa Rican property since the Supreme Court will simply “recognize” the foreign judgment and will not alter, amend or modify the foreign judgment.
A Costa Rica Notary Probate Process as an Alternative.
In Costa Rica under certain circumstances the heirs may avoid a court probate process and instead appear before a Public Notary to initiate a Probate Notary Process. The Notary Code allows this if there are no minors involved and the process is uncontested.
The Notary Council that has oversight over public notaries has issued a finding that “Costa Rica legislation allows a Notary Public to process a probate case with a foreign will as long as all the legal requirements established by law are met.”
When considering opening a probate process in Costa Rica this is another option that needs to be considered before initiating a judicial court process. The Notary Public will then advise if the process can proceed under the Notary procedure or if it must go through the court process.
Should I have a Costa Rican Will also?
Another alternative in estate planning is to have a separate will in Costa Rica, which would be limited to disposition of the assets located within Costa Rica. This way, the local assets are probated with the local will, avoiding the judgment recognition proceeding or interpretation of a foreign will. You need to be very cautious with this approach and it must be carefully analyzed by your legal advisor in conjunction with the will that you have in your home country. Most wills have revocation clauses and you want to make sure that one will is not revoking the other.