One of the law firms that I use here in Panama is very well versed in real estate law as well as corporate, administrative and probate law, all of which you need to understand when investing here. This post deals with how best to structure your ownership. As I know that I have fewer years ahead of me than behind, I set up several corporations here as well as a Foundation that holds all of my patrimony or assets.
Today, hundreds of US, European and Canadian citizens arrive in Panama looking for a mountain retreat or a beach house. Since most of them are retirees, not infrequently, they request information on how to transfer assets to inheritors in a cost-effective and expeditious manner. It is very safe to purchase real estate in Panama, as it is easy to plan your estate under the Panamanian legal system. Several estate planning legal entities used in North America and Europe are available in Panama.
As a foreigner, if you own assets in Panama and pass, your inheritors may encounter legal fees and time consuming proceedings, should you not follow some simple rules to ease or avoid probate. When planning your estate you may face several options, for instance, absence of a will, a will, special tenancy, private interest foundations and trusts.
Absence of a will
If you do not have a will, dying intestate -without creating any property transfer method-, entails that property will be distributed according to the law of the relevant jurisdiction. Under Panamanian law, if there is no will and no surviving spouse, the estate is inherited by the children and the closest descendants of the children, if a child has died. If there are no descendants, the parents will inherit. In absence of descendants and parents, the closest ascendants will inherit. On the other hand, if there is a surviving spouse, the estate is inherited by the surviving spouse, the children and the closest descendants of the children, if a child has died. If you there are no relatives at all, who takes it all? Yes, you are right, the government, the municipality of your last Panamanian address, to be specific.
It is not the best choice to die intestate, because property will be distributed according to the civil law, not as you wish. In addition, both your executor and the guardian for your minor children will be appointed by a judge, following the criteria of the law. If no inheritors appear before the judge, the Municipality where your domiciled is located will inherit.
A Will
In certain cases a will is advisable as an estate planning tool, i. e., if you do not have the time to engage in a full-scale plan, or if it is very unlikely that you will die in the near future. If you have no assets, but would like to name a personal guardian for your children or donate your organs, a will is an adequate tool. In some cases, if you already have a thorough estate plan such as a set of trusts and private interest foundations, you may want a will, as a back-up will, to dispose of suddenly acquired property.
In some countries, Spain and Colombia to name a few, the freedom to dispose of assets through a will has been limited: part of the estate must be inherited by the closest relatives, another portion must be inherited by any relative and the final portion can be disposed of without any restrictions. Under Panama Civil Laws, there is absolute freedom to dispose of your assets post-mortem; one can leave the whole estate literally to the girl next door, except for the monies owed as alimony to children and/or parents and/or spouse. On the other hand, wills are always revocable; a new will can be written leaving the previous one without legal effects.
There are several types of wills authorized by the Panamanian civil code. The main ones being: Handwritten or holographic will: should be written, dated and signed in the handwriting of the person making the will. Might be inside a sealed envelope or not and is not normally witnessed. Open will: written before a Public Notary and three witnesses, the document is kept at the Public Notary archives, a copy is handed to the person making the will, anyone can have access to the document. Closed will: written by the person making the will, enclosed in an envelope that must be thoroughly sealed by the Public Notary and handed back to the signatory. The contents of the document will only be known by the person who wrote the will. Once the person dies, the will is opened by the judge in charge of the probate proceedings. Nuncupativewill: also called oral will, is valid if the person is in risk of imminent death, expresses his/her last will before five witnesses and dies within two months after so doing.
A will written in a foreign language requires the presence of two official translators, chosen by the person who is disposing of his/hers assets, in order to have the document translated into Spanish. A will that lacks this formality can be nullified. There are several formalities instituted by the law in order to protect the will of the person that passed away; a well trained Public Notary can give you assistance in order to comply with all legal formalities and avoid any claims challenging the validity of the will.
Are you, as a foreigner, able to dispose of your Panamanian assets through a will written abroad, say in your home country? In principle, yes, a will written abroad is valid in Panama. Notwithstanding, the treaties between Panama and the country were the foreigner was born must be checked on a case by case basis, to determine further legal consequences.
Although there are no inheritance taxes in Panama, the main drawbacks of a will lie in the grounds of time and money. If you use a will as a tax planning tool, your inheritors will need to hire a lawyer, pay legal fees, pay appraisal fees and, apart from that, they will have to file the deceased person´s will with a local court and, once the will is proved and the estate appraised, the assets will be distributed, in other words, the inheritors will have to wait for a judicial decision regarding probate and will have to pay legal fees.
Trusts, Joint Tenancy, Private Interest Foundations.
So, is there a legal tool that allows you to avoid probate? There are several. The private interest foundation is, to avoid legalese, a legal person, similar to a limited liability company, except that it cannot engage in commercial activities, but, as a living trust, can hold, administer and transfer to the next generation the assets of individuals and families. So you can transfer your local assets to a Private Interest Foundation, appoint an administration council which administers the assets according to your instructions, and at your death, everything goes to the person or persons you have named to inherit, avoiding probate. The Founder can be a member of the Administration Council, with such powers that will allow him/her complete control over the assets. Private Interest Foundations can be revoked or modified by the founder, in principle, subject to the provisions of the articles of incorporation. A protector can be appointed by the Founder with or without power to veto the decisions of the Council. Once the founder dies, the assets will be distributed by the Council according to the instructions of the founder, without the need to file for probate, pay legal fees or engage in time consuming court proceedings.
As in the US and the UK, it is possible under Panamanian law to use a living trust whereby all or part of your assets are transferred to the trust; so, when you die, beneficiaries you have named receive trust property, without going to court, in a discreet, cost effective and expeditious fashion. Living trusts, also called inter vivos,are revocable before you die. While you are still alive you control the trust assets, hence you can dispose of them in any manner you consider adequate, without any limitations. As a settlor or trustor you may choose yourself or a third party as trustee, if the latter, it is advisable to hire a reputed well established trust company.
In some cases, a joint tenancy bank account can be a useful probate avoiding tool, especially when there are family ties. Be sure that the bank account is opened in the name of “A” or “B”. This type of bank account allows any of the two persons to withdraw any or all of the money in the account, so there is an element of trust that must be carefully weighed.
Beneficiaries, Imposing Control Over Property, Medical and Financial Decisions.
It does not matter if you use a will, a private interest foundation or a trust to plan your estate, you can always name Primary Beneficiaries and Alternate Beneficiaries. The latter being those named to receive a gift if the primary beneficiary cannot, for any reason, receive it. You can, also, name people as Life Estate Beneficiaries (usufructuarios mientras vivan) who receive rights to receive income from, or the use of, the property during their life, but never receive rights of ownership. Whereas the Final Beneficiaries are those named to become legal owners after the Life Beneficiaries die. It is common place to name children as Life Estate Beneficiaries and grandchildren as Final Beneficiaries. Residuary Beneficiaries are those named to inherit assets that are not expressly left to any other person.
Whatever device you use, it is possible to impose controls over property. You can leave assets for a specific purpose, for instance, for the education of your grandchildren; in this case you should decide what level of education a child must reach. It is also possible to establish an annuity instead of a total lump sum for the beneficiary. In some cases, it is sound to ban the beneficiary from selling the estate, for a certain period of time, particularly when the beneficiary is financially irresponsible. There are various options to impose control over property left to your loved ones.
When your are mentally incompetent or you are alive due to the use of life-sustaining medical technology, and are not able to make medical or financial decisions, your will and the instructions therein contained shall not apply, due to the fact that your will takes effect when you die, not before. Hence, what can be done to overcome this problem? Although there are neither regulations nor Supreme Court decisions on these intricate matters, it appears to me that in these cases there might be at least two ways of dealing with the problem: first, a power of attorney, whereby the person appoints a trusted one who will take the important healthcare and financial decisions, during the relevant period of time. Second, you may leave directions and instructions on medical care and financial issues that will be implemented or executed by doctors and bankers, while you are incapacitated. The lack of instructions to your doctors and bankers or the absence of a duly appointed agent with authority to deal with your medical and financial issues, could lead to substantial harm to your assets, during periods of mental incompetence or absolute disability.