Probate before a notary public in Costa Rica

Translated from the Spanish original. If there is any discrepancy between the two versions, the Spanish text prevails. Read the original in Spanish.

When a family member dies, the heirs often discover that the house, the car, or the savings account are still in the name of the deceased and that no one can sell or transfer them. Resolving this requires probate proceedings (proceso sucesorio): the procedure that determines who inherits, what assets and debts the person left, and how they are divided. Many people believe this requires a long court case. Not always: if the heirs agree, the law allows it to be handled before a notary public (civil-law notary).

What does the law say?

The Notarial Code (Código Notarial, Law 7764) authorizes notaries public to handle probate, both when the person left a will and when they did not (Article 129). There are three ideas worth keeping in mind:

It is optional. Those involved may choose between the court and the notary’s office (Article 129).
It has the same value. The notary’s actions in these matters have the same value as those of a court official (Article 133).
It follows the same rules. The notary public must apply the procedures that the law sets for the courts (Article 130 of the Notarial Code and Article 63 of the Guidelines for the Practice and Oversight of Notarial Services, Lineamientos para el ejercicio y control del servicio notarial). The Superior Notarial Council (Consejo Superior Notarial) reaffirmed this in its resolution 2018-024-020, stating that in these proceedings the notary public must abide by the Civil Procedure Code (Código Procesal Civil), for example when setting the value of the assets.

When is it not possible?

This is the point most worth checking before starting. Probate cannot be handled before a notary public in these cases:

If minors or legally incapacitated persons are among those involved (Article 129). The Guidelines extend this limitation to cases in which their rights could be affected, even if they are not directly parties (Article 59).
If a sealed will (testamento cerrado) must be opened, or an open will that was not executed before a notary public must be verified, or if the deceased’s assets must be secured to keep them from disappearing. Those procedures are reserved for the courts (Article 61 of the Guidelines).
If a dispute arises. The notary public must stop and send the file to the court if any interested party asks, if someone objects in writing, or if any dispute appears (Article 134). If the notary public continues despite the objection, anything done afterward is void and the notary public may face criminal penalties.

That is why, in practice, the notarial route works when all the heirs agree from the beginning and remain in agreement until the end.

What does the procedure involve?

Request in person. Those involved ask the notary public in person to intervene, and the notary public records this in a certificate (acta) that opens the file (Article 130).
Initial requirements. They provide proof of death, the details of the deceased and of the potential heirs, a statement of whether a will exists, and a provisional list of assets with their approximate value (Articles 116 and 126.2 of the Civil Procedure Code).
Public notice and executor. A notice (edicto) is published in the Judicial Bulletin (Boletín Judicial), giving fifteen days for heirs and other interested parties to come forward. An executor (albacea) is also appointed, the person who manages the assets while the proceedings last (Article 126.3).
Declaration of heirs. Once the period has passed and any objections have been resolved, the heirs are declared (Article 127).
Inventory, appraisal, and debts. The executor files the inventory. If an asset has a tax or official value updated within the last two years, that is taken as its actual value; if not, an appraiser is appointed (Article 128.3 of the Civil Procedure Code). The deceased’s creditors must file their claims within the proceedings (Article 129.1).
Distribution. The heirs, by mutual agreement, decide how the assets are distributed. If there are registered assets, such as houses or vehicles, the agreement must be recorded in a public deed (escritura pública) so that it can be registered (Article 133.1).

At the end, the notary public sends the file to the Judicial Archive (Archivo Judicial) for permanent safekeeping (Article 131 of the Notarial Code).

What if there is already a case in court?

Probate proceedings already under way in a court can be transferred to a notary public, as long as all the interested parties request it in writing (Article 135 of the Notarial Code). As for cost, the notary’s fees are the same as those an attorney would charge for the same matter in court (Article 137). The expenses of the procedure are paid separately, such as the appraiser’s fees when one is needed (Article 136).

Practical recommendations

Talk with all the heirs first. The notarial route only moves forward if no one objects.
Gather the documents: death certificate, the will if there is one, title searches (estudios registrales) for the assets, and information on the debts.
Check whether any minors are involved. In that case, probate must be handled in court.
Ask for a written breakdown of fees and expenses before starting.

Need help?

Every family and every estate has its own particulars. At Murillo y Guzmán we can review whether your case can be handled before a notary public and assist you from the initial request through the registration of the assets. Book a consultation.

This article is for informational purposes only and does not constitute legal advice for any specific case. To discuss your situation, book a consultation.