Additional Question on Wills by Foreigners

[Ken]

Your previous replies to questions on wills by foreigners were very helpful. Here are a couple more:

How does a foreigner include in his will his apartment/condo/house in the DR? If the property is owned by the individual, I suppose it is treated like any other property he owns. But what about those who own a company that owns a property? Is the will-makers shares of stock in the company what is included in the will? Does the apartment/condo/house get mentioned in the will?

When the foreigner dies, must a copy of his will be presented to Dominican authorities? If so, can a foreigner be sure that whatever taxes are collected here will only be collected on property owned in the Dominican Republic?

 

[GringoCArlos]

My lawyer told me the way to do this is to write an undated letter assigning your shares in the company to the person you intend to receive the shares, sign and stamp the letter, and then put it somewhere VERY SAFE , but accessible when you die. Once you are planted, the lawyer will date the letter and transfer the shares as you have asked.

The letter transfers the shares to the recipient, and the only thing that changes is the ownership of the shares. Invisible to anyone looking from the outside, unless you talk about the company or the property in your will.

 

[JanH]

The way our DR attorney explained is a "US will" would not override the contract we have for our DR company that owns the villa.

Doug has one more share than me. If he dies, I get the house because I have 2nd most shares. If his will says his aunt in Florida gets the villa, then tuff sh*t. It's mine.

Gringo's attorney's explanation would be the correct way to go if no family members had shares in the company while he's living.

 

[Ken]

Doug has one more share than me. If he dies, I get the house because I have 2nd most shares. If his will says his aunt in Florida gets the villa, then tuff sh*t. It's mine.

Jan, it seems to me that something is missing in your understanding of what happens should Doug die. I don't see how he could will the house to anybody since he doesn't own it. The company does. But what if he willed his shares, the majority interest in the company, to his aunt. It would seem that then you wouldn't have enough shares to control the company or the house.

Looking forward to hearing what Fabio has to say on the subject.

 

[Stephen]

I agree with Ken,

although a friend of mine here in POP has the same understanding as JanH does and I keep telling her that she can't be correct. I think you can will your "shares" to anyone.

Another question I'd like others opinions on: If we ASSUME that we as the OLDER members of our family will pass on first, why wouldn't it be wise to put the shares of our companies in the younger members of our families or whomever we want to own them NOW rather than worrying about what will happen. What would the disadvantage be?????....ASSUMING that you know that they will not interfere with your use of the property etc.??

 

[JanH]

What I was trying to say was a U.S. Will would not have jurisdiction in DR. So, If Doug willed his shares to Aunt Jane, I could fight that in the DR legal system. Right?

Hope Fabio reads this soon so he can lay it to rest

 

[Ken]

Jan, see this thread http://www.dr1.com/forums/showthread.php?s=&threadid=18115&highlight=wills

Wills prepared in the US are accepted in the DR.

 

[JanH]

Thanks, Ken. That thread answered all the questions.

Now..... what about divorce? (not us)

Would a divorce decree in US hold any weight in your DR company? For example, I'm not the principle shareholder, but I want half of the house. and so on...

 

[KenoshaChris]

Bass Ackwards JanH

What you're trying to say JanH is that the courts in the DR would have no jurisdiction over a will executed in the US. What if that will executed in the US met all of the criteria for a valid and enforceable will in the DR? Would mere locus of execution operate to void a valid testamentary gift when that will meets the elements of both a valid US will and valid DR will? As an attorney here in Illinois, my gut tells me that can't happen however, wills are not ordinarily used in the DR given the law of intestate succession there. That is what accounts for the many title problems we see there with relatives coming out of the woodwork making claims to real property years after the decedent takes that dirt nap. Ken has raised an issue very pertinent to all of us that have homes there and I'd certainly like to see Fabio's opinion on this.

 

[KenoshaChris]

Valid Will Valid Bill

Ken, the fact that you answered the question while I was putting my response together does not operate to render my bill invalid. That'll be 250 bucks. Remember, I know where you live! See you over Thanksgiving.

 

[Ken]

Chris, I have subtracted your bill from your account, the charges for carrying messages to Isabela.

Regarding the thread, I hope with your superior knowledge that you will add any other questions that you think we should have Fabio answer.

 

[Ken]

Would a divorce decree in US hold any weight in your DR company? For example, I'm not the principle shareholder, but I want half of the house. and so on...

Fabio will be responding on Sunday, but it is my understanding that a minority shareholder doesn't have a claim on anything owned by the company. The majority stockholder controls the company that owns the house(s).

 

[Fabio J. Guzman]

Ken, if the condo is the sole asset held by a corporation, then what has to be included in the will is the stock you have in the corporation. Usually you also mention in the will that the corporation owns the condo, although it's not required.

Law #2569 of 1950 mandates that the heirs must make a declaration to the tax authorities within 30 days of the date of death. Taxes are collected on real estate property located in the Dominican Republic and on "moveable" property located anywhere if the deceased was Dominican or had his last domicile in the DR.

GringoCarlos, you got some bad advice. The only way to transfer property after death is by will or by the rules of intestate inheritance. If the letter is dated after your death, it is null and void.

JanH, you also got bad advice. If your husband dies, his shares go to his heirs, whoever they might be. Nobody gets the house. The house belongs to the corporation forever unless the corporation is dissolved. Whoever has the majority of shares in the corporation controls its assets and therefore the house.

 

[Ken]

Law #2569 of 1950 mandates that the heirs must make a declaration to the tax authorities within 30 days of the date of death. Taxes are collected on real estate property located in the Dominican Republic and on "moveable" property located anywhere if the deceased was Dominican or had his last domicile in the DR.

Fabio, does this mean that a non-Dominican expat who resided in the DR at time of death can be taxed on some of his assets located outside of the DR?

"Moveable property" means what?

 

[GringoCArlos]

Fabio, the advice that I received was that if I were to die, my attorney would take the UNDATED letter which I had written before, add a date to the top of the letter that was PRIOR to my death, and the shares of the company owning the property would pass to whomever I had designated.

Did I still receive bad advice?

 

[KenoshaChris]

GC: Very bad advice.

 

[Fabio J. Guzman]

Yes, Ken. A non-Dominican expat who is a legal resident of the DR at the time of his/her death can be taxed on his "moveable"assets located outside of the DR. "Moveable property" comprises everything that is not real estate ("immoveable property"). The good news is that I have never heard of a single case where this provision has been enforced, even for Dominicans.