Ecuador Estate Planning for Expats
Written by Sara Chaca, Attorney – Abogada, May 6th, 2024
Ecuadorian Wills
While naturally, 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 complies with. Please note very importantly, that a US Will (or other foreign Will) does NOT generally take the place of an Ecuadorian Will, especially 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 no property in Ecuador (i.e. no bank accounts, no real estate, no business interests, etc.), then you can skip to the section below discussing other End-of-Life planning documents, and not concern yourself with this section on Wills.
For those who DO have any type of property as Residents here in Ecuador (besides just furniture, appliances and petty cash in your purse or wallet), 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. That last sentence notwithstanding, it is also besides the fact that your family who doesn’t live in Ecuador, likely doesn’t speak Spanish (or at least not sufficient enough Spanish) – nor do they likely have 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, which 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 Expats 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. It is recommended for ALL foreigners for 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" will. That is because, this type of Will is made and written in your own first language, not in Spanish. The other type of Will in Ecuador, called an “Open Testament”, is not recommended for people without strong Spanish language skills. Additionally, the Notary costs are lower for a “Closed Testament” (i.e. for Senior Citizens of age 65+, the notary fees are typically FREE for a Closed Testament).
Currently, in order to have a “Closed Testament” will considered LEGAL in Ecuador, you need to comply with the following requirements:
- Closed Testament: Your Will, in the form of a “Closed Testament”, must be written 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 complies with the respective Ecuadorian laws and ways of reciting/writing a legally acceptable Will here in Ecuador.
- Witnesses: 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.
- Notary: The document must be Notarized. The cost of the Notary fees for the Closed Testament is generally $0 if one is a Senior Citizen of age 65+; otherwise, the Notary fees are around $520 for anyone under the age of 65 at the time of making and notarizing their Will.
The Declaración Juramentada
EVEN IF your asset allocations do not make an Ecuadorian Will necessary--if you regularly reside in Ecuador, you should consider the End-of-Life planning document known as the Declaración Juramentada (in English this simply means a “Sworn Statement”).
Eventually all of us meet our maker, regardless of our religious affiliation or life philosophy. Even if you plan to leave Ecuador prior to the time of your passing, we never really know when our time will come. It is far better to have a valid plan in Ecuador, and not need it--than to need a plan, and not have it. Please consider taking an hour or so to create your own Ecuador end of life plan. By doing so, you will have the best chance of serving your family and friends, reducing their angst, and allowing them to focus on remembering and celebrating your memory.
There are 3 considerations that you should account for in a Declaración Juramentada in order to enable someone to follow through on your wishes.
- Determine whom in your home country or here in Ecuador (family or friend), will be most capable and reliable for purposes of overseeing the process of disposing of your final remains and/or property.
- Determine if you wish to be buried or cremated here in Ecuador, including where you wish to be buried or have your ashes brought or shipped to.
- Determine who here in Ecuador should inform your family in your home country of your death, so that they can expediently act on your decision(s) as per your preferences relative to #’s 1 and 2 above.
To be valid--a Declaración Juramentada it must:
- Be written in Spanish,
- Make proper reference to you as the Declarant,
- Be properly formatted in conjunction with the Ecuadorian legal code,
- Be signed by both yourself and an Attorney here in Ecuador, and
- Be properly notarized here in Ecuador by an Ecuador licensed notary (this also is generally arranged by the Attorney who you contract to prepare the Declaración Juramentada for you).
Living Wills
Unfortunately Living Wills, which in places like the US enable one to forego or refuse extension of life processes or heroic life-saving procedures (i.e. the making of “Do Not Resuscitate” [DNR] instructions), are generally not valid in Ecuador. There are ways to work-around this limitation. If this is of interest to you please contact me.
Right to Dignified Death
In 2024, the Ecuadorian Courts decriminalized physician assisted deaths (Associated Press). We are waiting for the legislature to provide guidance.
U.S. Consular Services
The United States State Department offers some services to support families in the event of the death of a family member in Ecuador. See the U.S. Ecuadorian Embassy's Webpage for details and contact information.
Contact
For assistance contact Sara Chaca, an English speaking Ecuadorian Attorney (principal office is
located in Cuenca but services all of Ecuador). For every Expat, Sara provides a complimentary consultation regarding immigration to Ecuador—specific to your circumstances.