Did you know that without a valid will in Ecuador, your assets could be distributed under local laws and not according to your wishes? I'm excited to share this critical information with expats living in this beautiful country. As a legal professional, I've seen firsthand how proper estate planning can save families from unnecessary legal battles and heartache.
Let me walk you through everything you need to know about creating a legally binding will in Ecuador that protects your legacy and ensures your final wishes are respected. This is the first installment in our educational series on Ecuadorian inheritance law, so stay tuned for deeper dives into related topics in upcoming articles.
I recommend watching the video below where I cover the main points of creating a valid will in more detail:
"According to the Civil Code, if a person owns property in Ecuador, the inheritance and succession of those assets are regulated by Ecuadorian law, not by the law of the country of origin."
This fundamental principle catches many expats by surprise. No matter your nationality or where you created previous wills, any assets located within Ecuador fall under Ecuadorian jurisdiction. This means your U.S., Canadian, or European will may not be valid for your Ecuadorian assets, even if that document has been properly apostilled.
The most important thing to understand is that Ecuador's legal system approaches inheritance differently than many Western countries. Here, you don't have complete freedom to distribute your assets as you wish. Instead, the law establishes mandatory portions that must go to specific family members.
Think of your estate as a cake divided into three slices:
This legal framework exists to protect family members, particularly children, from being disinherited. While this may seem restrictive, understanding these limitations is essential for creating a valid will.
As an expat in Ecuador, certain special requirements apply to your will-making process:
"If you are not a Spanish speaking person, we need to have both the Spanish legal version which is the one that will be executed, and then we need to have the English version that shows that you were fully aware of what you were disposing on your will for the legal validity of it."
Your residency status or immigration classification doesn't affect your ability to create a will, nor does it impact who can be named as beneficiaries. However, as a non-Spanish speaker, you must have what's called a "closed will" (testamento cerrado).
A closed will for expats generally requires:
The notary's role is crucial in this process. They verify that you're mentally capable and creating the will of your own free will. They also ensure all witnesses meet legal requirements.
One common misconception I encounter is expats believing they can create joint wills with their spouses. In Ecuador, this simply isn't possible.
"Even if a couple is legally married, and even if their marriage is registered in Ecuador, they cannot produce a joint will. This is not recognized under our law and it's a really important thing to understand because it's the main difference from the US law."
Each person must have their individual will, which is another reason why working with a knowledgeable attorney who understands both Ecuadorian law and expat concerns is so important.
Here's an aspect of Ecuadorian law that often surprises my expat clients: the concept of "conjugal society" or "sociedad conjugal."
"Under Ecuadorian law, if a couple is legally married, doesn't matter if they were married in a different country, as long as they are married and Ecuador is aware of this, we have something called conjugal society under which all assets are divided between the spouses 50-50 regardless if the assets are only under one of the names of the spouses."
This means even if you've maintained separate bank accounts, purchased property in your name only, or have investments solely under your control, under Ecuadorian law, your spouse automatically owns half of everything acquired during the marriage.
The practical implication? In your will, you can only dispose of your 50% share of these assets. Your spouse's 50% isn't yours to distribute.
Let me give you a concrete example: If you have a bank account with $100,000 in your name only, you can only distribute $50,000 through your will. The other $50,000 already legally belongs to your spouse.
This aspect of Ecuadorian law often creates confusion, especially for those coming from countries where marital property is handled differently. Planning your estate with this understanding is crucial for avoiding family conflicts later.
After years of helping expats navigate Ecuador's inheritance laws, I've seen several recurring mistakes that can easily be avoided with proper planning.
"The first most common mistake is assuming that a foreign will is valid in Ecuador... Even though under certain procedures such as apostilles, you can have a foreign document being executed in Ecuador, if a will does not observe the laws of Ecuador that we have already discussed, then it's not valid."
I recommend having separate wills for each country where you hold assets. Your Ecuadorian will should cover your Ecuadorian assets, while maintaining separate estate documents for assets in your home country or elsewhere.
Another frequent misunderstanding involves when to update your will:
"Thinking that the will needs to be updated every time that you acquire a new property is not true. With the proper legal clauses on the will, we could cover your assets that are currently part of your patrimony and also your future assets."
At Expat Law Group, we draft wills with special clauses that cover future assets, saving you from repeated trips to the notary every time your financial situation changes slightly. However, I do recommend updating your will when:
In the video I mention a client who left outdated will information. His children endured a two-year legal battle because the will didn't include recently acquired real estate. These situations are entirely preventable with proper planning and occasional review of your estate documents.
You might be wondering what happens if you don't create a will at all. The answer is straightforward but potentially problematic:
"If you die without a will in Ecuador, the assets will be distributed under Ecuadorian intestacy law. And under this law, basically we have an order that progressively gets applied."
Ecuador follows this succession hierarchy:
This last point deserves special attention. If you're living alone in Ecuador without family nearby, creating a will becomes even more crucial. Without one, and without relatives willing to come to Ecuador to claim the inheritance, your assets could end up in government hands.
"It's really, really important that you have a will, or the likelihood of the Ecuadorian government inheriting all of your assets becomes real high."
Now that you understand the importance and requirements of an Ecuadorian will, let's discuss some practical aspects of creating one.
The cost varies widely depending on several factors, including:
While notary fees for those under 65 can run about $600, seniors over 65 pay only about $30 - a substantial difference. Legal fees are additional and vary based on the complexity of your situation.
Finding qualified witnesses can sometimes present challenges. All five witnesses must be:
Many expats worry about finding five Ecuadorian nationals willing to serve as witnesses. At Expat Law Group, we maintain a network of qualified individuals who can assist when needed, taking one more worry off your plate.
Creating a valid will in Ecuador might seem complicated at first glance, but with proper guidance, it's a straightforward process that provides invaluable peace of mind.
Remember these key points:
"Protect your legacy. Contact Expat Law Group to draft your will today."
I invite you to reach out for a free 15-minute consultation where we can discuss your specific situation and develop a plan tailored to your needs. Don't leave your legacy to chance - take control of your estate planning today and ensure your wishes are respected tomorrow.
Sabrina Candela is an Associate Attorney at Expat Law Group, specializing in helping expatriates navigate Ecuador's legal system. This article is intended for informational purposes only and should not be considered legal advice.
