Leaving Assets to a Charity in Your Ecuadorian Will: A Comprehensive How-To Guide

Understanding Ecuadorian Inheritance Law and Charitable Bequests

Ecuador's succession law, governed by Book III of the Código Civil (Civil Code), is built on the principle of forced heirship. This system protects certain family members, ensuring they receive a mandatory portion of the estate. Your ability to donate to charity is dictated by what remains after these obligations are met.

Key Legal Principles:

• Forced Heirs (Herederos Legitimarios): Under Artículo 1204 of the Civil Code, half of your estate (the legítima rigurosa) is reserved for your forced heirs, primarily your children. If you have no children, your living parents become the forced heirs.
• Testamentary Freedom (Porción de Libre Disposición): You have complete freedom to bequeath the "disposable portion" of your estate. If you have children, this amounts to one-quarter (la cuarta de libre disposición) of your total estate. The other quarter (la cuarta de mejoras) can be used to "improve" the inheritance of one or more descendants but cannot be given to a third party like a charity. If you have no forced heirs (no living children or parents), your entire estate is considered the disposable portion.
• Types of Wills: For expats, the Testamento Abierto (Open Will) is almost always the best choice. It is a public instrument executed before a Notary and witnesses, which provides maximum legal security and simplifies the future probate process. A Testamento Cerrado (Closed Will) is more complex to probate and rarely recommended.

Identifying and Vetting Charitable Organizations in Ecuador

Before drafting your will, you must perform thorough due diligence on your chosen charity. An improperly registered or defunct organization can render your bequest void, leading to lengthy and costly legal battles.

Steps for Due Diligence:

1. Verify Legal Registration: Ensure the organization is a legally constituted entity in Ecuador (e.g., Fundación or Corporación). Crucially, confirm its registration and active status with the appropriate ministry. For most social, cultural, or educational non-profits, this is the Ministerio de Inclusión Económica y Social (MIES), whose operations are often governed by regulations like Acuerdo Ministerial 053. For environmental groups, it might be the Ministry of Environment.
2. Confirm Tax Status: The charity must have an active Registro Único de Contribuyentes (RUC) number issued by the SRI (Ecuador's IRS). You can publicly verify the status of any RUC on the SRI's website. A charity with a suspended RUC cannot legally receive funds or transfer assets.
3. Request Governing Documents: Ask for a copy of the charity's bylaws (estatutos) and the legal document appointing its current director or legal representative (nombramiento). This confirms who has the legal authority to accept the bequest on the organization's behalf.
4. Distinguish Ecuadorian vs. International Entities: Bequeathing assets to an international charity's local "branch" can be problematic unless that branch is a legally separate and registered Ecuadorian entity. It is almost always simpler and more secure to name an established, Ecuadorian-registered non-profit in your will.

Drafting Your Ecuadorian Will with Charitable Bequests

The language in your will must be unambiguous. Vague wording is the primary reason bequests fail or are challenged in court.

Essential Components of Your Will:

1. Full Identification of the Testator: Your full legal name (exactly as it appears on your passport), nationality, marital status, passport number, and Ecuadorian address.
2. Revocation Clause: A clear statement revoking all prior wills and testaments made anywhere in the world. This is critical to prevent conflicts.
3. Appointment of Executor (Albacea): Appointing an executor is highly advisable. This individual or entity is responsible for administering your estate and ensuring your wishes are followed. For expats, this can be a trusted friend, your attorney, or even an officer of the beneficiary foundation (if they agree). The Albacea must formally accept the role after your passing.
4. Precise Identification of Beneficiaries:
   • Forced Heirs: Clearly list your forced heirs as defined by Ecuadorian law.
   • Charitable Organization: This is where precision is paramount.
     • Full Legal Name: State the charity’s complete, official name as it appears in its registration documents (e.g., "Fundación para el Cuidado de Animales Cuenca").
     • RUC Number: Include the charity's RUC number. This is its unique legal and tax identifier.
     • Address: Provide the charity’s registered legal address (domicilio legal).
     • Specific Bequest: Describe the asset(s) with absolute clarity.

Hyper-Specific Language for Charitable Bequests:

• Vague: "I give $50,000 to the animal shelter in Cuenca."
• Legally Sound: "I bequeath, from the disposable portion (de la porción de libre disposición) of my estate, the sum of Fifty Thousand United States Dollars ($50,000.00) to the Fundación Amigos de los Animales Cuenca, with RUC number 01903XXXXX001, a legal entity domiciled in the city of Cuenca, Ecuador."
• For Real Estate: "I bequeath my real estate property located at Calle Larga 5-24 y Hermano Miguel, in the city of Cuenca, registered under cadastre number (clave catastral) XXXXX and with property registry number XXXX, to the Fundación "Z" with RUC number XXXXXXXXXX001."

Executing Your Will: The Notarial Formalities

Ecuadorian law is rigid about the execution of a will to ensure its validity.

Requirements for a Testamento Abierto:

• Notary Public (Notario Público): The will must be executed in the office of a licensed Ecuadorian Notary.
• Witnesses: Three qualified witnesses are mandatory. They cannot be beneficiaries, related to you or the beneficiaries, or employees of the Notary.
• Hyper-Specific Detail: A common mistake expats in Cuenca make is bringing fellow expats as witnesses. Notaries are extremely strict about this. Witnesses must be fluent in Spanish and, in most cases, must be Ecuadorian citizens or permanent residents with a cédula. A notary can and will reject a witness who struggles to understand the legal Spanish being read aloud.
• Execution Process: The notary will read the entire will aloud in Spanish in the presence of you and all three witnesses. You will then affirm it is your last will, and all parties (you, the witnesses, and the notary) will sign every page.
• Cost: The fee for a standard Testamento Abierto is set by the Consejo de la Judicatura. As of 2024, the direct notarial fee is approximately $226 plus 15% VAT, though legal fees for drafting and consultation are separate.

Common Expat Pitfalls to Avoid

1. Relying on a Foreign Will: While Ecuador is a signatory to the Hague Convention, probating a foreign will here for your Ecuadorian assets is a slow, expensive, and uncertain judicial process. An Ecuadorian will for your Ecuadorian assets is non-negotiable for a smooth process.
2. Misunderstanding Forced Heirship: Attempting to disinherit a forced heir or donating more than your disposable portion will lead to the will being partially invalidated during probate.
3. Failing to Update Your Will: A will should be a living document. Marriage, divorce, the birth of a child, or significant changes in your assets all warrant a review and potential update of your will.
4. Ignoring the Post-Mortem Process: A well-drafted will simplifies the Posesión Efectiva, the legal process of transferring the estate to the heirs. With a clear will, this can be a straightforward notarial procedure. Without one, or with an ambiguous one, it becomes a complex and lengthy judicial process that can take years to resolve.

⚠️ Legal Alert: When to Stop and Consult an Attorney

• If you have any forced heirs (children or parents). The calculations must be precise.
• If your chosen charity is new or you cannot easily verify its legal and tax status.
• If you plan to bequeath a portion of a business, an asset held in a foreign trust, or other complex financial instruments.
• If you are married and need to understand how your marital property regime (sociedad conyugal) affects your personal estate.
• If your Spanish is not sufficient to understand the legal terminology of a will. Never sign a legal document you do not fully comprehend.

Conclusion

Leaving a legacy to a cause you cherish in Ecuador is a profound final act of generosity. By respecting the framework of the Código Civil, performing meticulous due diligence on your chosen charity, and using precise, unambiguous language in a notarized will, you can ensure your final wishes are honored. This process safeguards your legacy from legal challenges and allows your contribution to make a real, lasting impact on the community you call home.