By Sara Chaca
Revised on January 7, 2018
While laws in Ecuador are always changing, Ecuador DOES generally respect Ecuadorian Wills made in accordance with the specific law at the time, that any particular Last Will & Testament comports with.
It is very importantly to note that a US Will (or other foreign Will) does NOT generally take the place of an Ecuadorian Will; particularly because certain requirements exist in Ecuador as far as how and when assets must be disposed of at death (or specific percentages thereof).
A good example of this, is that US Wills, by both state and statute, are often more flexible in terms of permitted Beneficiary Designations than Ecuadorian law allows for, given one’s marital status and blood lines.
If you have property in Ecuador (i.e. bank accounts, real estate, business interests, etc.), then as Residents here in Ecuador, this is an issue that you should familiarize yourself with; and in such case, probably also actionably undertake for the benefit of your family who doesn’t live in Ecuador.
Assuming that your family doesn’t live in Ecuador, likely doesn’t speak Spanish (or at least not sufficient enough Spanish), has no experience or knowledge with the Ecuadorian legal process for the disposition of property, to or for one’s rightful heirs at the end of one’s life, it can make such a life (or end of life) event quite stressful, if not followed by a literal “secondary trail of tears” as a proximate result of same.
While this article is by no means meant to serve as a complete manual for expatriates regarding the Last Will & Testament process in Ecuador, it is intended to provide a general overview of how a Will needs to be drafted here in Ecuador.
Therefore, please note that it is generally preferable by Ecuadorian Notaries, for ALL foreigners whom Spanish is their second language and/or whose Spanish speaking ability is less than excellent, to make what is referred to as a “Closed Testament”. That is because this type of Will is made and written in your own first language of English, not in Spanish.
The other type of Will in Ecuador is called an “Open Testament”, but that is really no longer as good an option for a Foreigner as it was in the past. Besides, the Notary costs are lower for a “Closed Testament” (e.g., for Senior Citizens of age 65+, the notary fees are typically FREE or $0.00 in Notary costs). So, it greatly behooves the expatriate to do so, precisely as the Notaries request and prefer for the benefit of expatriates, in this instance.
As per your Ecuadorian Will, you generally need to comply with the following current requirements in order to have it be considered LEGAL in Ecuador, in accordance with Ecuadorian law, as it pertains to a “Closed Testament”:
– Your Will, in the form of a “Closed Testament,” must be created in either a typed or handwritten letter by you, in English (no words in Spanish), and signed by you in Blue Pen. Your Ecuadorian Attorney can/should be able to provide you with an English-language format for your Ecuadorian Will that comports and complies with the respective Ecuadorian laws and ways of reciting/writing a legally acceptable Will here in Ecuador.
– A total of 5 Witnesses holding EITHER Ecuadorian Residency OR Ecuadorian Citizenship (i.e. NOT a foreigner who is a tourist or a family member) are required for a “Closed Testament”.
– The cost of the Notary fees for the Closed Testament is generally $0 (i.e. FREE) if one is a Senior Citizen of age 65+; otherwise the Notary fees are around $400 for anyone under the age of 65 at the time of making and notarizing their Will.
There are some other minor concerns and issues with respect to effectively dotting the “i’s” and crossing the “t’s”, but the above provides a sufficient foundation for purposes of a foreigner’s understanding of the boiler plate requirements for creating and certifying a Will here in Ecuador.
Of course, each individual person’s situation is always unique, and so an in-person meeting with your Ecuadorian Attorney with respect to your own particular facts and circumstances is certainly in line with good and proper planning acumen. This will allow you to ensure that you are intelligently administrating the legacy of your golden years here in Ecuador, such that they glean unto and for the benefit of your family and respective heirs, in and of their own future and right path forward, following your own life’s light having shined brightly (and hopefully brilliantly at that!), here in beautiful Ecuador.
Sara Chaca (Attorney – Abogada) is a seasoned Ecuadorian Lawyer, who principally serves Expats in making their moves to Ecuador, as well as for any legal issues that arise or become actionable for her Expat clients to undertake in their new lives here in her beautiful country. Sara resides in Cuenca with her family, which consists of her American husband and 2 daughters (as well as her parents and siblings), and when not working, she enjoys spending time with her family in Cuenca’s majestic Cajas Mountains and local parks & fairs of Cuenca, plus visiting the coast as well as the many gem towns of Ecuador. Sara’s personal email address is email@example.com, and her personal cell phone number is 099.296.2065. Sara has a less than 24 hour first response policy, in that if you email or call her, she WILL return your first email or first phone call in less than 24 hours (more typically closer to 24 minutes). Most importantly, all first time consultations with Expats for any type Visa or Legal matter(s) are always FREE OF CHARGE.