Posted on 2019-01-11
International Succession Laws - STEP 2018
Juan F, Pardini and Juan Raúl Sevillano
Pardini & Asociados
Pardini & Asociados has contributed the Panama chapter to the International Succession Laws book in collaboration with the Society of Trust and Estate Practitioners (STEP) and Bloomsbury Professional.
Fixed rights of inheritance
Succession laws and rights of inheritance
Succession and inheritance rights in Panama are regulated by the Civil Code ,the Civil Procedure Code, Law No 1 of 1984 (‘trust legislation’) and Law No 25 of 1995 (‘foundation legislation’) and the Tax Code.
According to the Panamanian Civil Code succession is the transmission of active and passive rights that form part of the deceased’s estate to an individual or entity—such transmission being by operation of law (intestate succession) or pursuant to instructions given by the testator in his will.
Panamanian law governs the distribution of assets and liabilities wherever they are physically located within Panama, even if the deceased is domiciled abroad at the time of death.
The determination of the individuals entitled to succeed to the estate of the deceased is based on kinship.
The level of kinship is determined by the number of generations between the deceased and the relative in question. Each generation represents one degree. The series of degrees create a line, which can be direct or collateral.
The direct line is formed by persons who are descended from each other in a straight line. For example, in the direct line father and son are in the first degree of kindred, grandparent and grandson are in the second degree of kindred and great-grandparent and great-grandson are in the third degree of kindred. The Panamanian Civil Code distinguishes between the direct descendant line and the direct ascendant line.
Descendants have priority over ascendants and any other category of heir to the estate of the deceased. Thus, children of the deceased and their descendants, including adopted children and their descendants, succeed to their parents’ and other ascendants’ estate.
No distinction is made between legitimate and illegitimate children. All children are considered equal under Panamanian law.
The children of the deceased succeed in their own right taking equal shares in the estate. Grandchildren and other descendants succeed by right of representation. Therefore, if any of the grandchildren or other descendants have died then his or her share in the deceased’s estate will be divided amongst his or her heirs.
If the deceased died leaving no children or descendants then the ascendants, except for the collaterals, will succeed to the deceased’s estate.
Parents succeed to the deceased’s estate in equal parts; if one parent is dead, then the surviving parent is entitled to the entire estate of the deceased.
If both parents are dead, the ascendants of the closest degree of kindred to the deceased will succeed to the estate. If there are several ascendants in the same line and of the same degree of kindred to the deceased, they will share the estate in equal portions. If there are ascendants in different lines but of the same degree of kindred, then half the estate will be distributed to the ascendants in the maternal line, with the other half passing to those in the paternal line.
The collateral line comprises individuals who are not descended from one another, but who are descended from the same ancestor. To calculate the degree of kindred in the collateral line one goes up to the common ancestor and then down from him, as from brother to brother, or between cousins. Thus, in the collateral line brothers are in the second degree of kindred, uncle and nephew or niece are in third degree of kindred, and so on.
Collateral relatives are entitled to the deceased’s estate if there are no surviving descendants or ascendants. Should this be the case, the following rules will apply:
Relatives in the same degree take equal shares in the estate of the deceased while relatives in different degrees are each exclusive of one other.
The entitlement of the surviving spouse
Where there is a surviving spouse, the rules set out above relating to descendants, ascendants and collaterals are modified as follows:
(a) Children, grandchildren and other descendants—if the deceased is survived by children, then the spouse and children will inherit equally. If there are no surviving children, then the estate of the deceased will pass to the surviving spouse and descendants. In this case the surviving spouse will inherit per capita and the descendants per stirpes.
(b) Ascendants—if there are no surviving children or descendants, the estate will be distributed equally between the surviving spouse and parents of the deceased. If there is no surviving parent, then the spouse and the closest ascendant will inherit equally. If there are several ascendants in the same line and degree of kindred to the deceased, the estate of the deceased will be distributed equally between them and the surviving spouse.
If there are several ascendants in the same degree, but different lines, then the estate will be divided into three portions as follows: (i) for the surviving spouse; (ii) for the ascendants in the paternal line; and (iii) for the ascendants in the maternal line.
(c) Natural children—if a natural child of the deceased dies leaving no surviving descendants, then the estate of the deceased will be distributed equally among the surviving spouse and the surviving father or mother of the natural child. If there are no natural ascendants, then the natural child’s portion of the estate will pass to his natural siblings and to the surviving spouse of the deceased.
(d) Collateral relatives—if there are no ascendants or descendants, then the surviving spouse and the collateral relatives will succeed to the estate of the deceased subject to the following rules:
Right of representation
The right of representation applies where the heir to a deceased’s estate has also died. The right of representation is the right of the surviving relatives of the deceased heir to take the share to which the deceased heir would have been entitled had he or she lived.
The right of representation is only conferred upon descendants of the deceased heir and descendants of the deceased’s siblings.
Where the right of representation applies, the distribution of the estate is made per stirpes.
Right of accretion
Under the Panamanian Civil Code the right of accretion applies only with regard to testate successions, and in the following circumstances:
Under Panamanian law any individual over twelve years of age who is of full mental capacity may make a will. Holographic wills, however, will only be valid when made by individuals over eighteen years of age. A person suffering from insanity may make a will during a lucid period provided that the notary appoints two physicians to verify the capacity of the testator.
Wills and the designation of heirs or legatees and their portions in the estate cannot be made through a representative. However, the testator may appoint a third person to distribute the shares bequeathed to a specific category of heirs.
Types of wills
Panamanian wills fall into two categories—common and special. There are three types of common will: the open will, the closed will and the holographic will. Special wills are maritime wills and military wills.
(a) The open will—in this kind of will the testator expresses his wishes before a notary and three witnesses. The notary and witnesses must verify that they have seen the testator and understood his wishes, and must confirm his testamentary capacity. The formalities to be observed when making this kind of will are as follows:
(i) open wills must be prepared and certified by the notary and signed by the testator and witnesses after being read by the notary to the testator;
(ii) deaf persons must read the will on their own;
(iii) if the testator is blind the will must be read twice, once by the notary and once by one of the witnesses;
(iv) where no notary is available and the testator is close to death a will can be made in the presence of five witnesses;
(v) in a place where a disease has broken out, wills can be made before three witnesses, provided that they are over the age of sixteen;
(vi) where the death of the testator is imminent or there has been an outbreak of disease, wills may be either oral or written. However, wills made in either of these circumstances will be invalid after two months should the testator survive. If the testator dies, the will must be submitted to the notary within three months after the death of the testator.
(b) The closed will—a will is considered closed when the testator without revealing his wishes indicates that they are contained in the document he is presenting to the notary. The following must be observed in respect of a closed will:
(i) the presentation of the will to the notary must take place in front of three witnesses;
(ii) closed wills may be prepared by the testator or someone else at his request;
(iii) the will must be placed in a sealed envelope;
(iv) blind persons and persons who are unable to read may not make a closed will;
(v) deaf mute persons and mute persons who are able to write may make a closed will;
(vi) the testator may keep a closed will himself, give it to another person to hold on his behalf or leave it with the notary for safe-keeping;
(vii) upon the death of the testator, the person in possession of the will must submit the will to a competent judge within ten days after the death of the testator.
(c) The holographic will—requires no witnesses and is wholly in the testator’s handwriting and signed by the testator. Only individuals over 18 years of age may make a holographic will. The Panamanian Civil Code requires this kind of will to be presented before a circuit judge who will authorise its notarisation. Interested parties may challenge a holographic will by way of ordinary proceedings.
With regard to a holographic will which was made in a foreign country but which affects property in Panama, the following rules apply:
(i) where a holographic will is made in a foreign country that does not allow holographic wills, the will must be presented to the judge of the deceased’s last domicile in the Republic of Panama;
(ii) where the holographic will was made in a country that allows holographic wills, then the law of the foreign country where the holographic will was made will govern its formation and structure. A copy of the notarised and legalised will must be delivered to the judge of the last domicile of the deceased in the Republic of Panama.
(a) The maritime will—open and closed wills made during a voyage must observe the following rules:
(i) where a will is made on a warship it must be made before the commander or captain and in the presence of two witnesses chosen from the crew who must physically see the testator and comprehend his wishes;
(ii) where a will is made on a merchant ship the captain assisted by two witnesses may authorise the will;
(iii) wills made by the commander of a warship or the captain of a merchant ship can be authorised by their respective deputies;
(iv) wills made on board a ship must be left with the commander or the captain for safe-keeping, and registered in the log book;
(v) when a ship on which a will was made arrives at a foreign port which has a diplomatic agent or a consular officer, the commander or the captain must deliver a copy of the open or closed will to the diplomatic agent or consular officer, together with the registration note contained in the log book.
(b) The military will—in times of war, military officers, volunteers, hostages and other army employees may make a will before an officer. Sick or injured individuals may make a will before a physician. Military wills expire four months after the testator ceases to be on active duty. During a battle, attack, combat or any peril of war a will can be made orally before two witnesses. The will, however, becomes invalid if the testator survives the conflict.
Military wills must observe the following formalities:
(i) they must be made in the presence of two witnesses;
(ii) they must be sent to the general barracks, and thence submitted to the Secretary of Government;
(iii) upon the death of the testator the Secretary of Government must submit the will to the judge of the deceased’s legal domicile.
A military will which is a closed will must also observe the formalities governing closed wills.
Joint wills are not allowed under Panamanian law. Two individuals may not make wills in the same document. This rule applies irrespective of whether the wills are made for the reciprocal benefit of each other or for the benefit of a third person.
When making a will the following formalities must be observed:
(a) Wills—in respect of a will made in a language other than Spanish the testator must appoint two interpreters, and the will must be written in both languages.
(b) Witnesses—a witness must be over 18-years-old (except where there has been an outbreak of disease in which case open wills may be made before three witnesses over the age of 16), have full mental capacity and be domiciled in the district where the will is made, except where the law provides otherwise. The following persons lack capacity to act as a witness:
(i) the blind or those who are completely deaf or mute;
(ii) those who are not able to understand the language of the testator;
(iii) those who have been found guilty of forgery or perjury or have lost their civil rights due to a civil conviction;
(iv) assistants, copyists, servants and relatives within the fourth degree of kindred or second degree of affinity to the notary attesting the document;
(v) in the case of an open will, beneficiaries and legatees appointed under the will, and their relatives within the fourth degree of kindred or second degree of affinity may not act as a witness, unless the bequeathed item is an object, piece of furniture or an insignificant amount of money.
(c) The notary and two of the witnesses must know the testator and verify the testator’s legal capacity.
Recognition of foreign wills
Wills made in foreign countries are valid in Panama as long as they comply with the law of the country in which they were made. The exception to this rule is the holographic will. Under Panamanian law holographic wills are always valid, even when they are made in a country that does not recognize them.
Revocation of wills
Wills are revocable during the testator’s lifetime, provided that the testator observes the formalities relating to the making of wills. Any clause in a will which attempts to prohibit future revocation is considered to be invalid.
A subsequent will automatically revokes a previous will unless the subsequent will provides otherwise.
Closed wills found in the home of the testator are considered revoked if the envelope containing the will has been broken or if the signatures on the will have been altered. The revocation, however, may be contested through proceedings aimed at proving the authenticity of the closed will and/or its signatures.
How to claim statutory rights of inheritance
Any person in possession of a will must submit it to the competent judge when he becomes aware of the death of the testator.
Any person with an interest in the succession proceedings, who knows that a specific person is in possession of the will, may petition the court for the filing of the will.
Creditors may request the opening of succession proceedings after two months have elapsed since the death of the deceased.
Testate succession: any heir, legatee, creditor, executor or guardian with an interest in the inheritance may petition the court for that purpose. A death certificate must be filed with the petition.
Intestate succession: anyone with an interest in the deceased’s estate may request that succession proceedings begin by submitting the following:
Opening succession proceedings
After receiving a request to initiate succession proceedings, the judge will issue a decree indicating that the proceedings have commenced and setting out the names of heirs and legatees designated in the will, as well as the names of the administrators appointed by the deceased. The decree will also request any person with an interest in the inheritance to make their existence known to the court.
After receiving a request for the opening of succession proceedings, the judge will notify the Attorney-General. The Attorney-General is allowed five days in which to review the request and evidence. At the end of this period the judge will issue a decree indicating that the succession proceedings have been opened and confirming the names of all those who qualify as beneficiaries. The decree will also request any person with an interest in the inheritance to make their presence known to the court.
A notice of the declaration of heirs must be posted at the court for ten days and be published three times in a newspaper with a national circulation.
Inventory and valuation of goods
After the decree declaring that the succession proceedings are open has been advertised in the newspapers, the judge will order that an inventory and valuation of goods takes place.
There are two kind of inventories:
(i) judicial inventory—this type of inventory is required where the heirs include minors, missing persons or anyone who is insane. The judicial inventory is produced by the judge and the secretary of the court together with the experts;
(ii) non-judicial inventory—this type of inventory is produced only by experts and two witnesses appointed by the heirs or their representatives, or if necessary by the judge where the heirs cannot agree on the appointment.
Once the inventory has been drawn up, the valuation of goods will take place. After the inventory and valuation of goods has been completed there will be a three-day objection period. During this period, any interested parties including the creditors of the deceased can make objections to the inventory and the valuation of goods. If no objection is raised, then the judge will proceed with the adjudication of goods.
Adjudication of goods
The adjudication of goods takes place when the judge issues a decree indicating that the heirs have legal possession of the goods. The decree will also provide for the delivery of movable goods to the heirs or legatees and for the registration of real property into the name(s) of the beneficiaries who receive such property.
Where real estate forms part of the estate of the deceased, the adjudication decree issued during the succession proceedings must be notarised and filed with the Public Registry.
Any individual or entity not prohibited by law has the legal capacity to inherit.
The following persons, however, lack the capacity to inherit:
Creditors of heirs or legatees
Even though an heir or legatee may reject his inheritance, the creditors of such a person may have a claim on the estate. Before the adjudication of goods in favour of the heirs, the creditors of any heirs or legatees may request authorization from the judge to receive the portion of the estate that has been rejected.
Charitable gifts and the right to maintenance
Under Panamanian law all individuals and legal persons have the legal capacity to inherit. Panamanian law allows national or international institutions that do not contravene public policy to be the beneficiaries of an inheritance.
It should be noted with regard to bequests to charities that although the testator may dispose of all of his property by will, the rights of persons entitled to receive maintenance (the right to necessities) will always have priority over any other heirs designated in the will.
According to the Panamanian Civil Code the following persons have the right to maintenance:
The right to maintenance will terminate upon the death of the children, legitimate descendants, spouse and parents. Should the surviving spouse remarry before receiving any maintenance then he or she will lose his or her right to maintenance.
The right to maintenance is not applicable if at the time of death of the testator his or her children, spouse and parents own enough property to be considered solvent.
Should the testator attempt to give all his assets to a charitable association without considering the rights of persons entitled to receive maintenance, then the charitable association will receive only the portion of the estate that remains after deductions have been made to provide such maintenance.
If the testator gives all or part of his assets to charity without indicating how the assets should be distributed, then the executors will sell all the assets and deliver the proceeds to the Executive Branch. The Executive Branch will distribute the proceeds among the charities located within the domicile of the testator.
Whereas the representative of a legal person with the capacity to inherit may accept or refuse an inheritance, public associations and not-for-profit private associations may not do so without prior judicial authorization.
A testator can impose upon his heirs an obligation to give money periodically to charitable organizations, whether national or foreign. The Executive Branch will determine and supervise the payment of these donations should the testator have failed to provide a method for the administration of the donations.
How to challenge a succession
In the course of the succession proceedings the court will issue an adjudication decree (see para P1.22 above) in which the judge provides for the distribution of the deceased’s estate to the beneficiaries. If, after the adjudication decree of an intestate succession has been issued, a person or entity appears in order to claim his or her rights, such person or entity may challenge the adjudication by filing a complaint with the court that issued the decree. The court will hear the complaint by way of a summary proceeding.
Interested persons may challenge the authenticity of a holographic will through ordinary proceedings. The succession proceedings will be suspended until the dispute regarding authenticity is resolved.
Where it is not possible to prove the authenticity of the signatures in a closed will or where the envelope containing the closed will is broken, then the authenticity of the will may also be challenged by way of ordinary proceedings.
In Panama legal proceedings are classified into three main categories: common proceedings, administrative proceedings and supplementary proceedings. Common proceedings are then classified into three sub-categories: ordinary proceedings, oral proceedings and summary proceedings. Ordinary proceedings are the regular and usually the longest proceedings that take place before a court.
Should further assets of the deceased be found after the adjudication decree has been issued, then any interested person or heir may request an additional inventory, following the same proceedings and before the same court.
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