Buying from an Estate: The Legal Process and Due Diligence for 'Sucesión Intestada' Properties in Peru

As a licensed Peruvian real estate broker specializing in Arequipa, I often advise foreign investors and expats on the intricacies of the local property market. One area that frequently presents both significant opportunities and complex challenges is the acquisition of properties sold through Sucesión Intestada, or intestate succession. This occurs when a property owner passes away without leaving a valid will, triggering a legal process to determine their legitimate heirs and transfer ownership.

While these properties can sometimes represent an attractive investment due to potential undervaluation and heirs seeking quick liquidation, the legal and due diligence requirements are far more rigorous than a standard sale. Meticulous attention to detail and expert legal guidance are non-negotiable. This comprehensive guide will walk you through the process, highlight critical due diligence steps, and provide localized context for purchasing estate properties in Peru, particularly in Arequipa.

Understanding 'Sucesión Intestada' (Intestate Succession) in Peru

In Peru, Sucesión Intestada is governed by the Civil Code. When an individual dies without a will, or if their will is deemed invalid or incomplete, the law steps in to designate the legal heirs and the proportion of the inheritance each receives. The order of priority for heirs is clearly established:

Children and other lineal descendants: These are the primary heirs.
Parents and other lineal ascendants: If there are no descendants.
Spouse (surviving partner): The spouse typically inherits alongside descendants or ascendants, or solely if no direct lineal relatives exist.
Siblings: If no descendants, ascendants, or spouse.
Aunts, uncles, nephews, nieces: More distant relatives.
The State (Sociedad de Beneficencia Pública): As a last resort, if no legal heirs are found.

The process to legally declare these heirs is called Declaratoria de Herederos. This crucial legal step can be carried out either through a Notary Public (a faster, more common route if all heirs agree and there are no disputes) or through a judicial process in court (if there are disagreements, minors involved, or other complex legal issues). Once completed, the Declaratoria de Herederos must be duly registered with the Superintendencia Nacional de los Registros Públicos (S.U.N.A.R.P.), specifically in the registry of successions, making it publicly verifiable.

Why is this important for a buyer? Until the Declaratoria de Herederos is registered in the personal records of the deceased at S.U.N.A.R.P., and subsequently, the specific property title is updated to reflect the ownership of the declared heirs, they do not have the full legal capacity to sell the property. Any attempt to purchase before this step is complete carries immense risk and is generally not advisable.

The Pre-Sale Due Diligence Checklist for Buyers

Purchasing an estate property demands an exhaustive due diligence process. Skipping any of these steps can lead to significant legal and financial repercussions.

Step 1: Verify the 'Declaratoria de Herederos' (Declaration of Heirs)

What to obtain: You must demand a certified copy of the Notarial Act (Acta Notarial) or the Judicial Resolution (Resolución Judicial) that formalizes the Declaratoria de Herederos. This document is paramount.
SUNARP Registration: Critically, verify that this Declaratoria de Herederos is properly inscribed in the Public Registries (S.U.N.A.R.P.) for the deceased. An "Extracto de Partida Registral" from the personal records of the deceased should show this inscription.
Safety Check: Ensure that all legitimate heirs have been identified and included in the declaration. A common pitfall is an incomplete declaration, where an heir (e.g., an unrecognized child) could emerge later to claim their share, potentially invalidating the sale or causing protracted legal battles. This is why a thorough legal review of family records and the declaration process is vital.

Step 2: Confirm Property Ownership and Registration

Copia Literal de Partida Registral and Certificado de Gravámenes: Request a recent "Copia Literal de Partida Registral" (Literal Copy of the Property Registration Entry) and a "Certificado de Gravámenes" (Certificate of Encumbrances) from S.U.N.A.R.P. in Arequipa. These documents are your ultimate source of truth for the property's legal status.
Ownership History: Verify that the deceased was indeed the registered owner.
Liens and Encumbrances: Scrutinize the Copia Literal and Certificado de Gravámenes for any existing liens, mortgages (hipotecas), judicial seizures (embargos), easements (servidumbres), or other restrictions that would affect the transfer or use of the property. Debts of the deceased could be tied to the property.
Property Description: Ensure the physical description, boundaries, and size of the property in the registry match the actual property you intend to purchase. If there are discrepancies, a new survey and rectificación de área y linderos (rectification of area and boundaries) may be necessary, which is a lengthy process.
Safety Check: Ensure the property is free of cargas (charges) and gravámenes (encumbrances) that haven't been resolved. Your Peruvian lawyer will guide you on the implications of any identified issues.

Step 3: Assess the Property's Legal and Municipal Status

Zoning Certificates: Obtain a "Certificado de Zonificación y Vías" from the Municipalidad Provincial de Arequipa to understand the property's designated use (residential, commercial, mixed-use, industrial) and any building restrictions.
Municipal Taxes and Utilities: Request a "Constancia de No Adeudo de Impuesto Predial" and "Arbitrios Municipales" from the local district municipality (e.g., Municipalidad Distrital de Yanahuara, Cayma). This certifies that there are no outstanding property taxes or municipal service fees. Also, check for unpaid utility bills (water, electricity) which could become the buyer's responsibility.
Local Context/Warning: Historic Properties in Arequipa: Arequipa's Historic Centre is a UNESCO World Heritage site. Properties within this zone, particularly the famous Casonas Arequipeñas and buildings made of sillar (white volcanic stone), are subject to stringent regulations from the Municipality and the Ministerio de Cultura. Any renovation, modification, or even certain types of maintenance require special permits and adherence to specific architectural guidelines. Due diligence for such properties must include a detailed assessment of these restrictions, which can significantly impact your investment plans. Failure to comply can result in heavy fines and forced demolition of unauthorized works. This requires specialized legal and architectural consultation.

Step 4: Due Diligence on the Heirs (Sellers)

Identity Verification: Request current identity documents (DNI for Peruvians, Carnet de Extranjería for foreign residents) for all declared heirs.
Legal Capacity: Confirm all heirs are of legal age (18+) and have the mental capacity to enter into a contract. If a minor or incapacitated person is an heir, their legal representative (e.g., parent, guardian) will need a court order to sell their share, adding significant complexity and time.
Unanimous Consent: Crucially, confirm that all declared heirs are in agreement to sell the property and at the proposed price. One dissenting heir can halt the entire process.
Powers of Attorney (PoA): If an heir is not physically present in Peru to sign, they must grant a Power of Attorney to a representative. This PoA must be properly notarized (either in Peru or apostilled if granted abroad) and registered with S.U.N.A.R.P. to be valid for property transactions. Your lawyer must review its scope and validity rigorously.

The Buying Process for 'Sucesión Intestada' Properties – Step-by-Step

Once your due diligence is complete and satisfactory, you can proceed with the transaction.

Step 1: Engage Expert Legal Counsel

This cannot be overstressed. For an estate property sale, a Peruvian property lawyer is not a luxury, but a necessity. They will:

Perform or supervise all due diligence steps.
Draft and review contracts to protect your interests.
Verify the legal standing of the heirs and the property.
Represent you in negotiations.
Coordinate with the Notary Public.
Ensure all legal and tax obligations are met.

Step 2: Draft the 'Minuta de Compraventa' (Pre-Sale Agreement)

This is a private document, often drafted by your lawyer, outlining the terms of the sale before it becomes a public deed. It should include:

Full identification of all parties (buyer, and all heirs as sellers).
Detailed property description as per S.U.N.A.R.P.
Agreed-upon purchase price (in Peruvian Soles, PEN, or USD equivalent).
Payment schedule and methods.
Deadlines for all subsequent steps (e.g., signing the public deed).
Warranties from the heirs that there are no other undisclosed heirs, no hidden liens, and that they have full legal capacity to sell. An indemnification clause is vital here, protecting you if a third party later claims rights to the property due to an oversight by the heirs.

Step 3: Notarization and Public Deed (Escritura Pública)

This is the formal step where the sale is officially recorded.

Notary Public: The Minuta is elevated to an Escritura Pública (Public Deed) before a Notary Public. The Notary's role is to ensure legal compliance, verify identities, and certify signatures.
Signatures: All heirs (or their legally appointed representatives with valid PoAs) must sign the Escritura Pública in the presence of the Notary. This is where the sales contract becomes legally binding and ready for public registry.
Payment of Alcabala (Property Transfer Tax): Before or during the signing of the Escritura Pública, the buyer is typically responsible for paying the Alcabala tax to the relevant municipality. This tax is 3% of the property's value (either the sale price or the municipal appraisal, whichever is higher), with an exemption for the first 10 Tax Units (UIT - Unidad Impositiva Tributaria). As of 2024, 1 UIT is S/ 5,150 PEN, meaning the first S/ 51,500 PEN of the property value is exempt from this tax.

Step 4: Registration at S.U.N.A.R.P. Arequipa

This is the final and most critical step for the buyer.

Inscripción: The Notary Public sends the Escritura Pública to S.U.N.A.R.P. (specifically, the Arequipa office for properties in the region) for inscription in the property registry.
Legal Certainty: Only upon this registration are you legally recognized as the new owner. This step provides legal certainty (seguridad jurídica), making your ownership public and opposable to third parties. Until this is done, you only have a contractual right, not a registered ownership right.
Timeline: The registration process can take anywhere from a few days to several weeks, depending on S.U.N.A.R.P.'s workload and the complexity of the documents.

Step 5: Municipal Registry Update

Once registered at S.U.N.A.R.P., you must present the Escritura Pública to the local municipality where the property is located (e.g., Municipalidad Distrital de Cayma if the property is in Cayma). This updates their records, ensuring future Impuesto Predial (annual property tax) notices are sent to you.

Practical Investment Strategies & Risks

Buying from an estate can offer unique advantages:

Potential Value: Heirs often prioritize a quick sale over maximizing profit, especially if they are numerous or need liquidity, potentially leading to below-market prices.
Unique Properties: Estate sales can uncover charming, well-located properties that might not otherwise be on the market, particularly in older, established neighborhoods.

However, the risks are also substantial:

Undiscovered Heirs: The greatest risk. If a legitimate heir is not included in the Declaratoria de Herederos, they could challenge the sale in court, potentially leading to its nullification or demanding their share from you.
Contested Inheritance: Disputes among heirs can delay or complicate the sale indefinitely, even after a Declaratoria de Herederos has been made.
Hidden Debts: While the Declaratoria de Herederos typically includes a declaration of no other debts, unknown liabilities of the deceased could potentially encumber the estate.
Lack of Consensus: If one heir changes their mind or refuses to sign, the sale can fall through.
Lengthy Processes: Any legal issues discovered during due diligence can significantly prolong the transaction timeline.

Localized Context/Warning for Arequipa Buyers

Historic Center Properties: As mentioned, be acutely aware of the strict regulations for Casonas Arequipeñas. These are not standard properties. Any investment plan involving renovation or alteration will be subject to rigorous review by municipal and cultural authorities. Factor in specialist consultants (architects, lawyers familiar with cultural heritage law) and potentially longer timelines for permits.
Rural/Peri-Urban Areas: Properties on the outskirts of Arequipa, or in expanding pueblos jóvenes, may have less formalized property histories, informal subdivisions, or issues with land use designation (e.g., agricultural land being sold as urbanizable). This requires even deeper scrutiny of S.U.N.A.R.P. records, municipal plans, and a professional land survey. Established residential areas like Yanahuara, Cayma, and parts of Selva Alegre generally offer more straightforward property histories due to their consolidated urban planning and infrastructure.
Market Dynamics: While sucesión intestada properties can appear in any neighborhood, those in highly sought-after areas like Yanahuara or Cayma, often command higher prices even with the added complexity, due to their location and appreciation potential. However, the legal due diligence remains equally critical regardless of neighborhood.
"Posesión": Be extremely wary of properties where the seller only has "posesión" (possession) and not registered ownership. While common in some informal settlements, it offers zero legal protection for a foreign buyer and is not a viable investment strategy for legal certainty in formal real estate transactions.

Cost Considerations

Budget for the following:

Legal Fees: Peruvian property lawyer fees can range from 1-3% of the property value, or a fixed fee depending on complexity.
Notary Fees: Varies based on property value, typically 0.5-1% of the sale price.
SUNARP Registration Fees: Fixed fees based on the type of registration, generally a few hundred Soles.
Alcabala Tax: 3% of the property value above 10 UIT.
Property Survey/Appraisal: If necessary, costs will vary.

Navigating an estate sale in Peru is a journey through a specific legal framework. While challenging, with the right team and a commitment to thorough due diligence, it can lead to a rewarding investment.

⚠️ Legal Notice: Consult a Local Lawyer. The information provided in this article is for general guidance only and does not constitute legal advice. Peruvian property law, particularly concerning estate properties, is complex and subject to change. It is imperative to engage a qualified, independent Peruvian real estate lawyer specializing in property law to conduct thorough due diligence and provide legal counsel tailored to your specific situation before making any investment decisions. ArequipaRealEstate.com strongly advises against proceeding with any property transaction in Peru without professional legal representation.

For personalized advice on Arequipa's property market or to connect with trusted local legal professionals, visit ArequipaRealEstate.com.