Regulatory update
Notarial estate settlement in Cali: what makes it possible, and when it does not apply
When a person dies, their heirs can settle the estate before a notary, without going to court, as long as the conditions required by law are met. The duration and cost of the process depend on each case file. The notarial route requires agreement among all interested parties, and an underage heir does not rule it out on its own: the law allows it if at least one interested party is of legal age and the minor is duly represented.
Schedule a consultationWhat conditions must be reviewed
A notarial estate settlement requires that all interested parties (heirs, legatees and the surviving spouse or permanent partner) agree throughout the process. It is also necessary to review before which notary’s office it is handled: the choice depends on the deceased’s last domicile in Colombia and, if they had several, on the principal seat of their business. It is not enough that the heirs live in Cali or that a property is located there.
If there are underage heirs, the notarial process is possible when at least one interested party is of legal age, the minors are legally represented, and the interested parties with legal capacity and the representatives agree. The rules also provide specific safeguards: in the allocation of assets, minors are given preference with respect to real estate, and the notary records that their rights were protected. In the cases covered by those rules, the legal representative does not need court authorization to take part.
Law 1996 of 2019 recognizes the legal capacity of adults with disabilities and regulates the supports for exercising it. Disability, on its own, does not prevent a person from taking part in a notarial estate settlement. The supports and court decisions that apply to the case must be reviewed.
As a general rule, the process requires an attorney. Whether it can be handled without one must be checked against the estate’s value and the applicable rules.
The documents that build the file
The process is governed by Decree 902 of 1988, as amended by Decree 1729 of 1989, and, when there are underage heirs, by articles 33 to 37 of Decree 2651 of 1991, which Law 446 of 1998 made permanent law. The interested parties file, through an attorney when required, the request, the inventory and appraisal of the estate’s assets, a statement of liabilities (debts), the liquidation of the marital or civil-union property regime if one existed, and the partition plan that distributes the assets among the heirs. The notary publishes a notice summoning other possible interested parties, reports the estate to the tax authority (DIAN) when applicable, checks that the documentation is complete and that there is agreement, and the process ends in a public deed that formalizes the partition.
What costs and taxes must be reviewed
The cost of a notarial estate settlement depends on each case file. It includes notarial fees, whose calculation must take into account the net worth of the estate and, where applicable, of the marital property regime, under the applicable fee schedules; any registration costs, when real estate or other assets must be recorded in the heirs’ names; and the attorney’s professional fees. It is worth requesting a specific calculation based on each case’s actual assets rather than relying on a generic figure.
Separate from those costs are the tax obligations. Receiving an inheritance may give rise to occasional gains tax. The general rate is 15%, but it does not apply automatically to everything received: the tax valuation, the exemptions and the beneficiary’s tax situation must be reviewed. The exemption related to the deceased’s home has limits and conditions. When applicable, the notary reports the estate to the DIAN, which allows the DIAN to intervene regarding the estate’s tax obligations. That report does not mean the heir’s tax is collected when the deed is signed.
When it applies, and when it does not: notarial versus judicial
The notarial route is only available when the conditions described above are met. Two situations should be distinguished. A missing document does not, on its own, require going to court: the notary may return the request with comments so that it can be completed or corrected. A disagreement among the interested parties, on the other hand, prevents the process from continuing before the notary, and the same happens if there are underage heirs and the conditions for their participation are not met. When the proceeding ends because of a disagreement, the notary returns the file to the interested parties. If the disagreement persists, they will have to go to court. A different rule applies when it is shown to the notary that a court proceeding for the estate of the same deceased person, or for the liquidation of the marital property regime, has already begun: in that case, the notarial proceeding must be terminated and sent to the judge hearing that case. If the judicial route applies, the competent judge must be determined based on the estate’s value, the territory and the other applicable rules.
Before starting, it is worth reviewing who must take part, whether there is agreement, which documents are available and which authority is competent. That review makes it possible to identify whether the process can be handled before a notary or whether the judicial route applies.