Setting Up Your Will in Peru: Protecting Your Real Estate Assets in Arequipa

As a foreign investor or expat establishing roots in the magnificent White City of Arequipa, acquiring real estate represents a significant and rewarding commitment. However, safeguarding your investment and ensuring its smooth transition to your chosen beneficiaries is as crucial as the purchase itself. Navigating Peruvian inheritance law without proper guidance can lead to complex, time-consuming, and costly probate processes for your loved ones. This comprehensive guide, informed by years of experience in Arequipa's real estate sector, details the essential steps and considerations for setting up a legally sound will in Peru to cover your real estate assets.

Why a Peruvian Will is Indispensable for Foreign Property Owners

Many foreign nationals assume that a will executed in their home country will automatically govern their assets worldwide. While this may hold true for certain movable assets, Peruvian law generally dictates the inheritance of real estate located within its borders. Without a valid Peruvian will, your property in Arequipa—whether a charming colonial home in Yanahuara, a modern apartment in Cayma, or a serene country house in Uchumayo—will be subject to intestate succession (known as sucesión intestada or declaratoria de herederos). This process is notoriously lengthy, requiring judicial intervention, and can be particularly arduous for foreign heirs unfamiliar with the local legal system and language.

A properly drafted Peruvian will provides clarity, peace of mind, and control over your legacy, allowing you to:

1. Designate Specific Heirs: Ensure your Arequipa property goes to the individuals you choose.
2. Streamline the Process: Significantly reduce the time and expense of transferring ownership after your passing.
3. Appoint an Executor (Albacea): Name a trusted individual, ideally based in Peru, to manage the estate and execute your wishes.
4. Avoid Legal Ambiguity: Prevent potential disputes among beneficiaries and simplify the legal formalities.

Understanding Peruvian Inheritance Law: The Concept of Legítima

Before drafting any will in Peru, it is paramount to understand the principle of legítima (forced heirship), a cornerstone of Peruvian civil law (Código Civil Peruano). Unlike common law systems, where testamentary freedom is extensive, Peruvian law restricts a testator's ability to freely dispose of all their assets if they have "forced heirs" (herederos forzosos).

Forced Heirs (Herederos Forzosos) include:

• Children and Descendants: Regardless of age or marital status.
• Parents and Ascendants: If there are no children or descendants.
• Spouse: Inherits alongside children or parents, or as a sole forced heir.

The legítima refers to the portion of the estate that is legally reserved for these forced heirs and cannot be disinherited except under very specific and difficult-to-prove circumstances (e.g., serious misconduct as defined by law).

Distribution of Legítima (Portion You Cannot Freely Dispose Of):

• If you have children or descendants: Two-thirds (2/3) of your estate constitutes the legítima for them. You can freely dispose of the remaining one-third (1/3).
• If you have parents or ascendants (and no children/descendants): One-half (1/2) of your estate is the legítima for them. You can freely dispose of the remaining one-half (1/2).
• If you only have a spouse (and no children/descendants or parents/ascendants): One-half (1/2) of your estate is the legítima for your spouse. You can freely dispose of the remaining one-half (1/2).
• If you have no forced heirs: You have complete testamentary freedom and can dispose of 100% of your assets as you wish.

This crucial distinction means that even with a will, you generally cannot disinherit your children, parents, or spouse from their legally mandated share of your Peruvian assets. Any provision in a will that attempts to do so, beyond the legally permissible portion of "free disposition," may be challenged and declared null by the courts.

Types of Wills in Peru: The Recommended Path

Peruvian law recognizes several types of wills, but for foreign nationals wishing to protect their real estate assets, one stands out as the most secure and recommended option: the Public Deed Will (Testamento por Escritura Pública).

1. Public Deed Will (Testamento por Escritura Pública)

   • Description: This is a will executed before a Peruvian Public Notary (Notario Público) and two disinterested witnesses. The notary drafts the will based on your instructions, reads it aloud, and ensures its compliance with Peruvian law.
   • Advantages: It is the most robust and legally secure option. It is immediately registered with the National Superintendency of Public Registries (S.U.N.A.R.P.) in the Registro de Testamentos, making its existence and contents a public record (though confidential until death). This registration eliminates the need for judicial validation after death, significantly simplifying the probate process for your heirs.
   • Recommendation: This is unequivocally the recommended method for foreign investors owning property in Arequipa.

2. Closed Will (Testamento Cerrado)

   • Description: Written by the testator or another person, signed, sealed in an envelope, and presented to a notary with two witnesses. The notary records its delivery but does not know its contents.
   • Disadvantages: Requires a judicial process to open and validate after death. Less transparent and more prone to delays than a Public Deed Will.

3. Autograph Will (Testamento Ológrafo)

   • Description: A will written entirely by the testator's own hand, dated, and signed.
   • Disadvantages: The riskiest option. It is not registered during the testator's lifetime and requires a complex and often lengthy judicial process to prove its authenticity after death. Highly susceptible to challenges regarding authenticity or testamentary capacity. Strongly advised against.

Step-by-Step Guide: Establishing a Public Deed Will for Your Arequipa Assets

The process of creating a Public Deed Will is structured and requires careful attention to detail, ideally with professional guidance.

1. Step 1: Engage a Specialized Peruvian Lawyer This is the most critical first step. Do not attempt to draft a Peruvian will without the expertise of a lawyer specializing in succession law and real estate in Peru.

   • Expert Counsel: Your lawyer will explain the intricacies of legítima, advise on the best strategy for your specific circumstances, and ensure compliance with all legal requirements.
   • Asset Identification: Provide your lawyer with precise details of all your Peruvian assets, especially your Arequipa real estate. This includes the full address, property registration number (Partida Registral) at S.U.N.A.R.P., and copies of your title deeds (Escritura Pública).
   • Beneficiary Details: Clearly communicate your intended beneficiaries, their full legal names, identification numbers (passport, DNI, Carné de Extranjería), and their relationship to you.
   • Executor Discussion: Discuss the appointment of an Albacea (Executor). This individual will be responsible for executing the will's provisions. For foreign nationals, appointing a trusted Peruvian resident (e.g., your lawyer, a close friend, or a professional fiduciary service) is highly recommended.

2. Step 2: Gather Necessary Documentation Your lawyer will assist you in compiling the following:

   • For the Testator (You):
     • Valid Passport (original and copy).
     • Peruvian Resident ID (Carné de Extranjería), if applicable (original and copy).
     • Proof of current address in Peru or abroad.
     • Marital Status documentation (e.g., marriage certificate, divorce decree), apostilled and officially translated into Spanish if from abroad.
     • Birth certificates of children, if applicable, apostilled and officially translated.
   • For Your Arequipa Real Estate Assets:
     • Copies of the Minuta de Compra-Venta (purchase agreement) and Escritura Pública (public deed of title).
     • Copia Literal or Certificado Registral Inmobiliario (CRI) from S.U.N.A.R.P. Arequipa, providing detailed property registration information.
     • Property Tax records (Autovalúo from the Municipalidad Provincial de Arequipa).
   • For Witnesses:
     • Full names and Peruvian ID (DNI) or Carné de Extranjería details for two disinterested witnesses (not beneficiaries, not related to you or beneficiaries).

3. Step 3: Draft the Will with Your Lawyer and Notary Once all information and documentation are gathered, your lawyer will draft the preliminary text of the will. This draft will then be reviewed by a Public Notary.

   • Specific Bequests: Clearly identify your Arequipa properties by their S.U.N.A.R.P. Partida Registral number and full physical address. Specify exactly who inherits which property or what share of a property.
   • Residuary Estate: Define how any remaining assets (the residuary estate) should be distributed.
   • Executor Appointment: Name your Albacea, specifying their powers and responsibilities (e.g., managing assets, paying debts, distributing bequests).
   • Contingency Plans: Consider appointing alternate beneficiaries or an alternate executor in case your primary choices predecease you or are unable to serve.

4. Step 4: Execute the Will Before a Public Notary This formal signing ceremony takes place at the notary's office in Arequipa.

   • Attendance: You (the testator), your lawyer, and the two disinterested witnesses must be present.
   • Verification: The notary will verify your identity and the witnesses' identities.
   • Reading Aloud: The notary will read the entire will aloud to ensure you understand and agree to all its provisions. If you require a translator, this must be arranged and certified.
   • Signing: All parties—you, the two witnesses, and the notary—will sign the will. The notary will then affix their official seal and signature.

5. Step 5: Notary Registers the Will with S.U.N.A.R.P. Arequipa Immediately following its execution, the notary will formalize the will by registering it with S.U.N.A.R.P. (National Superintendency of Public Registries).

   • Registration Process: The notary sends a parte (official excerpt) of the will to the Registro de Testamentos section of S.U.N.A.R.P. in Arequipa. This crucial step makes your will a public record, significantly simplifying its validation after your passing.
   • Obtain Copies: You will receive an official certified copy (Testimonio) of the registered will from the notary.

6. Step 6: Safekeeping and Communication

   • Secure Storage: Keep your original Testimonio of the will in a safe and accessible location, preferably a bank safety deposit box or a fireproof safe, and inform your executor of its location.
   • Inform Your Executor: Provide your chosen Albacea with a copy of the will and clear instructions on how to proceed. Ensure they have your lawyer's contact details.
   • Review and Update: Peruvian law allows you to revoke or amend your will at any time. It is prudent to review your will every 3-5 years, or immediately after any significant life event (marriage, divorce, birth of a child, sale or acquisition of new property, changes in beneficiary relationships, or substantial changes in asset value).

Local Context and Warnings: Arequipa Specifics

• S.U.N.A.R.P. Arequipa Operations: The S.U.N.A.R.P. office in Arequipa is generally efficient, but processing times for specific certificates or registrations can vary. Your lawyer will be familiar with typical timelines and procedures. Ensure all property details in your will precisely match the Partida Registral at S.U.N.A.R.P. Arequipa to avoid discrepancies, which could cause delays for your heirs.
• Historic Properties in the UNESCO World Heritage Center: If your Arequipa property is located within the historic center, which is a UNESCO World Heritage site, be aware that any future modifications, even by your heirs, will be subject to strict municipal regulations and approvals (e.g., from the Oficina del Centro Histórico y Zona Monumental de Arequipa). Inheriting such a property comes with specific stewardship responsibilities.
• Notary Fees: The cost of executing a Public Deed Will in Arequipa typically ranges from S/ 800 to S/ 1,500 (approximately USD $200-$400), depending on the complexity of the will and the specific notary. This fee is separate from your lawyer's professional fees. Always confirm all costs upfront.
• Language Barrier: While many professionals in Arequipa may speak English, all official legal documents, including your will, must be in Spanish. If you are not fluent, ensure your lawyer provides clear explanations and, if necessary, arrange for a certified translator to be present during the execution of the will.
• Executor (Albacea) Importance for Foreigners: For foreign testators, appointing an Albacea who is a Peruvian resident or has significant ties to Peru is highly advisable. This person will be physically present to manage the estate, interact with local authorities, and oversee the transfer of assets, greatly simplifying the process for heirs who may live abroad.

Specific Considerations for Expats and Foreigners

• Conflict of Laws: If you have a will in your home country, it is imperative to discuss this with your Peruvian lawyer. Generally, Peruvian law will govern the inheritance of your real estate located in Peru, regardless of your foreign will. A Peruvian will specifically addressing your Peruvian assets can prevent potential conflicts or delays.
• Peruvian Inheritance Taxation: Peru does not have a direct inheritance tax (impuesto a la herencia) for heirs. However, there can be taxes related to the transfer of property ownership (e.g., capital gains tax if the property is subsequently sold by the heirs at a profit). Your lawyer can provide guidance on these nuances.
• Global Estate Planning: A Peruvian will should be viewed as part of a broader, integrated global estate plan. Ensure your Peruvian will is consistent with, or explicitly separate from, any wills you have in other jurisdictions.

Conclusion and Ongoing Due Diligence

Setting up a will in Peru to cover your real estate assets in Arequipa is a critical step in safeguarding your investment and providing clarity for your loved ones. By understanding Peruvian inheritance law, particularly the concept of legítima, and by meticulously following the steps for creating a Public Deed Will, you can ensure your legacy is managed according to your wishes. This proactive approach not only simplifies complex legal processes but also offers invaluable peace of mind for both you and your beneficiaries.

Regularly review and update your will to reflect any changes in your personal circumstances, asset portfolio, or legal landscape. This ongoing due diligence is part of responsible property ownership in Arequipa.

Legal Notice: Consult a Local Lawyer.

The information provided in this article is intended for general informational purposes only and does not constitute legal advice. Peruvian inheritance and real estate laws are complex and subject to interpretation and change. It is essential to consult with a qualified, licensed Peruvian attorney specializing in succession and real estate law for advice tailored to your specific situation before making any decisions related to your estate planning in Peru. ArequipaRealEstate.com strongly recommends seeking professional legal counsel.

For further insights into real estate investment in Arequipa or to connect with trusted local legal professionals, visit us at ArequipaRealEstate.com.